The Cigarette Century

by Allan Brandt

  In the broadcast, Joseph deBethizy, a scientist at R.J. Reynolds, denied that nicotine was added to cigarettes. But when Bogdanich forced him to concede that it was technically possible to produce a nicotine-free product, deBethizy countered, “I think the real issue is that we, as a company, are providing a legal product to people who are looking for a pleasing sensory experience with mild pharmacology.” Bogdanich saw this statement as the major admission of the piece. The industry had now acknowledged something it had always publicly denied: the addictive nature of the product, as well as its intent to manipulate these addictive qualities.

  The February 28 report was followed a week later by another segment that focused on cigarette additives, which included thirteen substances banned in food. The list of some 700 ingredients, the report explained, was supplied to the government but kept as “trade secrets” unavailable to press and public. According to the report, it was uncertain if even the president of the United States could obtain this information.

  The Day One reports—especially the Deep Cough segment—were blockbusters—a fact not lost on the industry, the FDA, and Congress. ABC soon received two coveted journalism awards for the broadcasts: the George Polk award, given by Long Island University, and a DuPont/ Columbia University award. The broadcasts had demonstrated that the industry clearly understood the critical importance of nicotine in maintaining consumption and employed sophisticated technologies to monitor and control the tar and nicotine content of its product. At the same time, however, the report was vague about precisely how much nicotine was “added back” or where it came from. These uncertainties opened the door for industry attacks on the piece. They would insist that Day One had erred; no additional nicotine was added to their cigarettes. In any event, the old days of Hill & Knowlton glad-handing with the press to secure “balanced” reporting were now long over. The tobacco wars were about to intensify yet again.

  Although the broadcast itself never used the term, the promotional trailer that ABC aired claimed that the tobacco industry was “spiking” cigarettes with nicotine. This would become the focal point of a massive legal battle between the industry and the network. Ultimately, ABC’s choice of the word spike would be used by the industry in its efforts to discredit a critically important piece of investigative journalism. The day following the broadcast—day two—Philip Morris announced its intention to file a libel suit. The decision reflected the perception within the industry of the damage the report could cause if not rebutted. The industry’s long-standing perception of being under siege began to take on some aspects of reality.

  The Day One allegations caught the interest of the FDA and Congress. The broadcast itself specifically raised the question of federal regulation, and Bogdanich and his colleagues were well aware that David Kessler, the commissioner of the FDA, had already begun a major investigation aimed at regulating nicotine in cigarettes. Near the conclusion of the segment, former Surgeon General Everett Koop noted, “I would think that if I were the administrator of FDA and I learned that nicotine was being added to cigarettes to increase the amount of nicotine present that I would view that cigarette as a delivery device for the use of nicotine which is, under ordinary circumstances, a prescription drug. And I would think that demanded regulation.”12

  Indeed, Kessler, eager not to be scooped by ABC, had sent a letter to the Coalition on Smoking OR Health on February 25, explaining that the FDA had decided to consider bringing tobacco under its regulatory authority. In his letter, he raised the possibility of restrictions on nicotine as well as a ban on nicotine-containing cigarettes: A strict application of these provisions could mean, ultimately, removal from the market of tobacco products containing nicotine at levels that cause or satisfy addiction. Only those tobacco products from which the nicotine had been removed or, possibly, tobacco products approved by the FDA for nicotine-replacement therapy would then remain on the market.

  But he realized that serious regulation of nicotine content could have powerful implications for the 40 million American smokers:Given the widespread use of cigarettes and the prevalence of nicotine addiction, such a regulatory action could have dramatic effects on our society. One must consider the possible effects of the loss of this source of nicotine on the health of some people who are addicted to nicotine and the possible need for a weaning period. It is also important to consider the potential for a black market in nicotine-containing cigarettes.

  He also emphasized the need to work closely with Congress to assure the FDA’s regulatory mandate:We recognize that the regulation of cigarettes raises societal issues of great complexity and magnitude. It is vital in this context that Congress provide clear direction to the agency. We intend therefore to work with Congress to resolve, once and for all, the regulatory status of cigarettes under the Food, Drug, and Cosmetic Act.13

  Kessler was scheduled to testify before Henry Waxman’s Subcommittee on Health and the Environment on March 25, 1994. The day before this appearance, Philip Morris filed its libel suit against ABC and its owner, Capital Cities, in Richmond, Virginia. Also named as defendants were producer Bogdanich and reporter Martin. At a news conference, Murray Bring, a senior vice president at Philip Morris asserted, “Philip Morris does not in any way, shape or form spike its cigarettes with nicotine. These allegations are not true, and ABC knows they are not true.” He went on to claim that “nicotine in cigarettes is not a drug. It’s a natural element found in the plant itself.” Philip Morris demanded $5 billion in compensatory damages and an additional $5 billion in punitive damages, noting that the “false and defamatory statements contained in the . . . broadcasts were made knowingly, recklessly and with malice.”14

  Kessler understood that before the FDA could invoke any regulatory authority over cigarettes, the public understanding of the product must be radically changed. This, in turn, demanded a careful investigation of precisely how the industry understood and utilized nicotine in its product. The Day One report had only hinted at a more complex story of industry research into the pharmacology of nicotine and the biochemistry of tobacco leaf. After more than a year of investigation into the tobacco industry, Kessler had concluded that FDA regulation could succeed only if he were able to show that the industry “intended” cigarettes to “affect the body,” as specified in the statutory mandate of his agency. As long as smoking was considered a matter of individual choice, there would be no regulation. At the hearings, therefore, he centered attention on the nature of nicotine as a drug:The issue I will address today is simple: Whose choice is actually driving the demand for cigarettes in this country? Is it a choice by consumers to continue smoking? Or is it a choice by cigarette companies to maintain addictive levels of nicotine in their cigarettes?

  Kessler suggested that a “picture is beginning to emerge” indicating that the companies manipulate nicotine levels to ensure cigarettes’ addictive potential. He reviewed with the committee his research team’s findings concerning a number of patents for enriching the nicotine content of tobacco plants. “The research undertaken by the cigarette industry,” he noted, “is more and more resembling drug development.”15 He went on to make a critical point: while most cigarettes’ tar and nicotine levels had declined significantly since the 1950s—as the industry would repeatedly claim—they had recently begun to climb again, even in low-tar cigarettes. This clearly indicated that the industry had the capacity and intention to maintain nicotine at addictive levels. Kessler would show—contrary to industry claims—that tar and nicotine did not “travel together.”16 He also asserted that the industry had done extensive research on self-administration of nicotine and then acted to suppress these findings. “In other words,” Congressman Waxman asked, “the tobacco industry sponsored studies on their own where they found out that nicotine was addictive and before the public could know about it, they acted to suppress those studies?”17

  R.J. Reynolds and Philip Morris had both experimented with product innovations that revealed the fundamental legal and
regulatory dilemmas facing the industry. Reynolds spent some $68 million developing a “smokeless” cigarette that would deliver nicotine by heating rather than burning tobacco. This high-tech product was developed largely in response to rising concerns about sidestream smoke. If cigarette smoking could be accomplished without smoke, R.J. Reynolds’s executives reasoned, they might stop or even reverse their product’s fall from grace. Moreover, although they refused to say so explicitly, a nonburning product could not only spare nonsmokers the risk of secondhand smoke but, even more importantly, reduce the risks to smokers as well. R.J. Reynolds invested heavily in this new product, which it called Premier. But antitobacco advocates immediately claimed that what R.J. Reynolds was proposing was not a cigarette at all but a “nicotine delivery device.”18 Even as tobacco control advocates insisted that the FDA should regulate it, the Premier “cigarette” was proving to be a $300 million mistake. In regions where it was test-marketed, consumers complained that the thing was hard to light (matches could not be used) and even worse, the smell was intolerable. Philip Morris had a similar but less pricey disaster with Next, a de-nicotinized cigarette it test-marketed in 1989.19 This product raised an important question: if nicotine could be readily extracted from cigarettes, why wasn’t it, if not to keep smokers addicted?

  These two new products were not only failures among smokers; they also directed the attention of public health officials and tobacco control advocates to new regulatory possibilities. Moreover, they demonstrated a technical sophistication that the simple notion of tobacco rolled in paper had allowed the industry to mask for more than a generation. The tobacco companies had made a critical misstep that their opponents would relentlessly exploit. Once again, the companies fell victim to a perennial problem. Since they refused to acknowledge the problems with the product (disease and addiction), it was difficult for them to aggressively market and promote products that sought to address the very problems that could not be named.

  Day One and David Kessler had fundamentally recast the debate about tobacco. The Cipollone verdict, despite Edell’s best efforts, had hinged on Rose Cipollone and her “decision” to smoke and continue to smoke. Edell had tried to shift attention to the actions of the companies, but in the end he could not. Now, as journalists and government investigators began to focus on industry research and production, an altogether different narrative of smoking began to emerge: one of secret technologies, research laboratories precipitously closed down, and nicotine as a potent drug carefully added to a high-tech product to sustain a greedy industry’s profits.

  Kessler, cautious in his approach to Congress, explained that he was “seeking guidance” about how to proceed.

  Clearly, the possibility of FDA exerting jurisdiction over cigarettes raises many broader social issues for Congress to contemplate. It could lead to the possible removal of nicotine-containing cigarettes from the market, the limiting of the amount of nicotine in cigarettes to levels that are not addictive, or restricting access to them, unless the industry could show that nicotine-containing cigarettes are safe and effective.20

  That such thoughts were voiced in such powerful venues constituted the gravest crisis for the tobacco industry since the first surgeon general’s report was released three decades earlier. As it had done in 1964, the industry took the offensive, expressing outrage and indignation over the charges of nicotine manipulation and the addictiveness of smoking.

  On April 14, 1994, the chief executives of the seven largest U.S. tobacco companies appeared before Waxman’s subcommittee. They insisted that tobacco was not addictive and that their companies had taken no action to manipulate the levels of nicotine in cigarettes. “We do not do anything to hook smokers or keep them hooked,” said James Johnston of R.J. Reynolds. “We no more manipulate nicotine in cigarettes than coffee makers manipulate caffeine.”21 This was an odd claim given that decaffeinated coffee products had been available for many years. The hearings, marked by abundant angry questions and hostile replies, were televised live on CNN and C-SPAN and covered widely in the print and broadcast media. Waxman put the executives on notice that the ground had shifted when he announced, in his opening remarks, that “this hearing marks the beginning of a new relationship between Congress and the tobacco companies. The old rules are out; the standards that apply to every other company are in.”22

  The tobacco executives had little interest in any new relationship; they fell back on the reliable tactics of the past, denial and naïveté. Each CEO testified in language that many commentators saw as rehearsed:23

  William Campbell, Philip Morris: “I believe nicotine is not addictive, yes.”

  James Johnston, R.J. Reynolds: “Congressman, cigarettes and nicotine clearly do not meet the classic definitions of addiction. There is no intoxication.”

  Joseph Taddeo, U.S. Tobacco: “I don’t believe that nicotine or our products are addictive.”

  Edward Horrigan, Liggett: “I believe nicotine is not addictive.”

  Andrew Tisch, Lorillard: “I believe that nicotine is not addictive.”

  Thomas Sandefur, Brown & Williamson: “I believe that nicotine is not addictive.”

  Donald Johnston, American Tobacco: “And I, too, believe that nicotine is not addictive.”

  These denials outraged Waxman and some of his colleagues, and the heat of their indignation raised the temperature in the hearing room. Several of the CEOs then gave their views on the meaning of addiction. William Campbell of Philip Morris dismissed the supposed connection between cigarettes and addictive drugs: “I’m a smoker, and I’m not a drug addict, and basically I can function really in quite a normal way. My judgment’s not impaired.” James Johnston of R.J. Reynolds compared cigarettes to milk, sweets, and Twinkies. Waxman pounced on him for downplaying the harmfulness of cigarettes. “You and I both know that Twinkies don’t kill a single American,” he charged. “The difference between cigarettes and . . . the other products you mentioned is death.”24 The executives continued to assert the industry’s long-standing position concerning the harms of smoking. When asked if he knew that cigarettes caused cancer, Lorillard’s Andrew Tisch replied, “I do not believe that.” Johnston insisted that neither he nor anyone else knew the death toll of tobacco since such numbers were “generated by computers and are only statistical.” When asked whether or not smoking caused a series of specific diseases, he repeatedly insisted, “I don’t know.” Waxman concluded by sharply admonishing him, “All of you have a responsibility to say something more than you don’t know. You have a responsibility to know.”25

  Tactics that had reliably worked in the past had now all but expired. As the studies accumulated over decades, it had become impossible for executives to claim, as they had always done, that they did not know or that more research was needed. And although many Americans had succeeded in quitting smoking, it had become clear that nicotine possessed all the markers of a powerfully addictive substance. This had been authoritatively documented in Surgeon General Koop’s 1988 report.26

  For the industry, the executives’ suspect testimony—and the image of them standing in a row, with their right hands raised—was an unprecedented media disaster. Newscasts and newspapers throughout the country led with accounts of the tobacco CEOs’ professed ignorance about the dangers of their product. Editorialists and columnists across the political spectrum had a field day submitting reviews of Waxman’s political theater. “Good thing no one asked those tobacco executives whether they think the world is round or flat,” commented the Baltimore Sun.27 A New York Times editorial noted, “It was a shameful day for American business, even though we are wearily familiar with the obfuscations employed by the defenders of an industry responsible for the deaths of nearly half a million Americans every year.”28

  John Hill had understood in 1953 that the strategy he had helped mastermind would one day stop working; now the day had arrived. Tactics that were effective just a decade earlier were now dated and radically out of touch with science
and, more importantly, with the public’s increasingly sophisticated view of tobacco and its purveyors. Nonetheless, they remained wedded to denial. Any serious concessions on the health issue and on the question of addiction would, according to the industry’s legal counsel, open the floodgates of litigation that they had so successfully bolted shut. It was one thing to have a PR problem, quite another to be saddled with billions of dollars in litigation risk.

  As a shrewd bit of media theatrics, the Waxman hearings had their desired effect. They exposed the industry’s tired old deceits and fueled the public indignation needed to forge the political will that would, in turn, yield legislative and regulatory action. Lining up the tobacco executives to deny, under oath, any knowledge of the harms of smoking had exposed their hypocrisy and self-interest to the glare of sound-bite politics. Further, Waxman’s hearings played to a deep popular anger about corporate dishonesty and greed. While the tobacco companies would continue to insist that cigarette use was a matter of individual choice, opponents like Waxman were eager to expose an industry knowingly valuing its own profits over the public’s health. He described the industry as the “evil empire,” a metaphor now frequently heard in public discussions of tobacco. After April 1994, the tobacco industry would be redefined as outside the boundaries of American corporate culture, a rogue industry. One year later, every one of the CEOs who appeared before Waxman’s committee had resigned or been replaced. The public humiliation of the hearings had not gone unnoticed in the Big Tobacco boardrooms.