The Cigarette Century

by Allan Brandt

  Waxman, armed with the FDA’s research findings as well as his own sources, expressed outrage at the CEOs’ stonewalling. “The tobacco companies have lied to us . . . and it is a criminal offense to try to mislead Congress,” he warned.29 In the hearings, he had set a trap for the CEOs. Following the April 14 hearings, Waxman’s colleague, Massachusetts Democrat Marty Meehan, would request that the Department of Justice (DOJ) begin an investigation of possible perjury on the part of the company executives. In December 1994, Meehan sent a 111-page prosecution memorandum to Attorney General Janet Reno, urging her to appoint a grand jury to investigate possible criminal conduct on the part of the industry. Although the request had originated from the suspicion that the CEOs had lied in their testimony in April, Meehan now suggested that there was new evidence that the companies, their executives, and perhaps even their lawyers had violated federal laws over more than three decades. “The enormity of the harm perpetrated by tobacco companies and their agents on American consumers is difficult to comprehend,” Meehan wrote. “It is apparent, however, that the crimes alleged here, committed over decades have contributed profoundly to the serious illness and early death experienced by tens of millions of Americans, as well as to literally trillions of dollars in health care costs and lost productivity borne by the economy of this nation and the individual states.”30 Among these alleged crimes were perjury, mail fraud, false advertising, deception of the public, deception of federal agencies, and deception of Congress. Meehan also suggested that the DOJ explore the possibility of criminal violations of the Racketeering Influenced and Corrupt Organizations (RICO) Act.

  Ultimately, a DOJ task force abandoned the perjury investigation against the CEOs, reasoning that it would be difficult to prove the executives had deliberately lied, given that they had testified that they did not “believe” smoking was addictive. The task force turned its attention to other potential illegalities: false statements, tax violations, and conspiracy to deceive the government and trial courts.31 At one point, the task force apparently considered indicting company lawyers for conspiring to use attorney-client privilege to protect illegal activities. Although many expected the DOJ to issue criminal indictments on at least some of these charges, despite more than five years of investigation no charges were ever filed. In a separate move, in late 1999, the civil division, at the direction of Bill Clinton, filed a suit against the companies to recover Medicare and Medicaid costs and penalties for civil violations under the RICO Act.32

  The run of bad news for the companies was just beginning. In 1988, Merrell Williams went to work as a paralegal for the Louisville law firm of Wyatt, Tarrant & Combs. A down-on-his-luck former drama professor, Williams was an accident waiting to happen for the tobacco industry. He would emerge at the end of the twentieth century having done more damage to Big Tobacco than perhaps any other person. Brown & Williamson had retained Wyatt to review and sort thousands of internal documents related to the liability actions against them. Williams was charged with classifying and filing these documents from 1988 until 1992, when he was laid off. But during this period, shocked by what he was reading, he began to take documents home. He would sneak them out past the security guards, tucked in his pants, in a corset, or sometimes simply in his briefcase.33 He then photocopied them and returned the originals to the office. In three-plus years, Williams accumulated more than 4,000 pages of documents, containing some of the most damaging revelations ever to emerge about the tobacco industry’s internal workings.

  In 1990, while still working at the firm, Williams contacted Richard Daynard, an antitobacco activist and attorney. Daynard suggested that Williams call former Washington Post reporter Morton Mintz, who had covered tobacco issues for many years and had been one of the few journalists covering the Cipollone trial. Mintz reviewed some of the documents and considered writing a book, but after consulting with lawyers about civil and criminal liability associated with using stolen materials, he decided to return them to Williams.34

  A lifelong smoker, Williams underwent quintuple bypass surgery in 1993; later that year he informed Wyatt through an attorney that he had in his possession some of the documents he had worked with while at the firm, threatening to sue but at the same time offering to return the documents in exchange for compensation for his physical and psychological injuries. A Wyatt attorney responded that Brown & Williamson did not settle smoking and health claims. Wyatt, Tarrant & Combs then filed a suit accusing Williams of stealing the documents and breaching the confidentiality agreement he had signed upon taking his position. The circuit court in Kentucky issued an order prohibiting any distribution or discussion of the documents.

  For more than a year, Williams and the documents—the latter hidden in a friend’s apartment in Florida—stood in legal limbo. But in early 1994, he contacted liability lawyer Don Barrett, who had tried a well-known tobacco case in Mississippi, Horton v. American Tobacco, which had resulted in a hung jury and accusations of industry jury tampering.35 Barrett arranged a meeting with his colleague Richard Scruggs, who was then considering liability litigation on behalf of the state of Mississippi with state Attorney General Michael Moore. After a series of meetings with Scruggs, who eventually offered him legal support and financial assistance, Williams finally agreed to turn over to him the entire set of stolen papers. The attorneys had them flown from Florida back to Mississippi. Scruggs and Attorney General Moore then hand-delivered a full set to Henry Waxman—a shrewd legal maneuver since members of Congress are protected from subpoena and other court orders under the Speech or Debate Clause of the Constitution.

  Reporters at ABC were apparently among the first to receive Brown & Williamson documents from Williams’s stolen archive, but given the pending libel suit against the network, they were required by company lawyers to return them. Walt Bogdanich, who well understood their significance, was appalled to be barred from reporting them, but the lawyers prevailed. This was a telling example of how the libel suit chilled coverage of the story.36

  The industry worked diligently to keep the documents under wraps. Brown & Williamson lawyers used every legal means to prevent any further release. But with several sets now in circulation, they could not contain the toxic spill. Philip Hilts, who had been covering tobacco issues for the New York Times, was the first reporter to write about the Brown & Williamson documents, which he received from “a government official.” On May 7, 1994, he published an article that appeared on the front page of the Times entitled, “Tobacco Company Was Silent on Hazards.” Hilts focused on a 1963 memo by Brown & Williamson general counsel Addison Yeaman, written shortly before the release of the surgeon general’s report, in which Yeaman wrote, “we are, then, in the business of selling nicotine, an addictive drug effective in the release of stress mechanisms.”37 Yeaman would go on to direct the Council for Tobacco Research. According to Hilts, the documents revealed that “the executives of the . . . Brown & Williamson Tobacco Corporation chose to remain silent, to keep their research results secret, to stop work on a safer cigarette and to pursue a legal and public relations strategy of admitting nothing.”38

  Shortly after Hilts’s first article appeared, a package of Brown & Williamson documents with the return address of only “Mr. Butts” came by Federal Express to Stanton Glantz of the University of California at San Francisco (UCSF), a leading figure in the antitobacco crusade. Not only did these documents make for good journalistic copy, they would provide a new foundation for grassroots advocacy and the pursuit of tobacco liability litigation. Glantz spent the next year reading the materials and evaluating their significance. Again, Brown & Williamson sued to have the materials returned, but the California court ruled in favor of UCSF. By June 1995, UCSF had placed the full set of documents on the Internet, where they remain available today. The “Cigarette Papers,” as Glantz would name them, had crossed into the public domain.

  In July 1995, Glantz and colleagues published five peer-reviewed articles in JAMA detailing key aspects of the Br
own & Williamson documents. These articles described the industry’s extensive knowledge about nicotine and addiction and about environmental tobacco smoke and about how Brown & Williamson sought to protect itself from liability action by maintaining legal authority over all research activities.39 Glantz and colleagues emphasized the striking contradictions between the industry’s public denials of the harms of smoking and the internal documents’ frank discussions of these harms.

  The Cigarette Papers proved that for three decades the company’s public statements had radically diverged from its internal activities and practices. Since the 1960s, Brown & Williamson documents had noted the likely carcinogenic effects of smoking, the addictive properties of nicotine, and the potential for harm generated by environmental tobacco smoke. Attempts to produce a safer product were repeatedly scuttled by legal counsel eager to avoid tacit public admission of the existing product’s dangers. The industry’s own research program, which focused on the “inadequacy” of scientific claims regarding the harms of smoking, was explicitly designed to serve the tobacco companies’ public relations needs. Glantz concluded:The documents showing lawyers steering scientists away from particular research avenues are inconsistent with the company’s purported disbelief in the causation and addiction claims; if the company had been genuinely unconvinced by the causation and addiction hypotheses, then it should have had no concern that new research would provide ammunition for the enemy. Quite the contrary, the documents show that B&W and [British American Tobacco] recognized more than 30 years ago that nicotine is addictive and that tobacco smoke is “biologically active” (e.g., carcinogenic).40

  The Cigarette Papers radically altered the debate about tobacco. Although other internal industry documents had emerged over the previous years—notably in Cipollone—the Brown & Williamson documents presented the most comprehensive look at industry activities that had yet become available. According to Hilts: “These documents are historic in the sense that they probably are the single most important pieces of paper in the history of tobacco versus public health—partly because of their timing, partly because of what they will mean in court cases, partly because they put everybody onto it.”41 Now the industry’s critics could know what, in the past, they had only surmised.

  From this point forward, the regulatory and legal case against the tobacco companies would be based on their knowledge and behavior in the years when the risks of cigarette smoking were becoming scientifically explicit. The Brown & Williamson documents provided, for example, additional justification for Kessler’s attempt to gain FDA regulatory authority over cigarettes. As one of Glantz’s JAMA articles concluded, “The documents reveal an intention on the part of B&W and its corporate parent to affect the function of the body with nicotine.” The words were chosen to address the heart of Kessler’s jurisdictional claim.42

  As for the legal attack against the companies, tobacco liability cases had always turned on the simple but important question of corporate versus individual responsibility. The companies had defended themselves by claiming, first, that the scientific knowledge of tobacco’s harms was shaky, and second, that individuals made informed decisions about whether or not they wished to smoke, which precluded them from holding the companies accountable for any harms they might suffer. The Brown & Williamson documents poured acid on these historic defenses. They revealed a set of strategic debates within the industry about how to deal with the growing knowledge of the harms of smoking; how to continue to successfully market cigarettes in a new environment; and the scientific characteristics of nicotine and addiction.

  Williams and Scruggs had each pushed the margins of law and ethics in their efforts to get these documents into the public domain. There is little question that Williams violated both the law and the subsequent restraining order. Scruggs may well have crossed his profession’s ethical boundaries by accepting allegedly stolen documents while he was preparing suits against the companies.43 Yet the social benefits of their actions can hardly be overestimated. They had conspired to break a remarkable conspiracy. To Brown & Williamson, Williams was a petty criminal who had committed an outrageous, immoral act and belonged in jail. To the tobacco control advocates, he was a hero who, at considerable personal risk, had exposed a decades-long cover-up of great public importance. In one last effort to bring Williams and the reporters who had publicized their documents to justice, Brown & Williamson sent subpoenas to Congressmen Henry Waxman and Ron Wyden (D-OR) as well as to six journalists, including Hilts at the New York Times and John Schwartz at the Washington Post, demanding return of the documents on the ground that their release violated the Kentucky court order against Williams.

  Higher courts quashed these subpoenas. The ones against Waxman and Wyden were dismissed under the Speech or Debate Clause of the U.S. Constitution, which protects congressional investigation from liability. Claims against the media also failed when courts upheld First Amendment protections for news sources; other courts also cited the important public interest served by the free flow of information.44 Ultimately, Judge Harold Greene, of the Federal District Court for the District of Columbia, declared:This is a seemingly arcane dispute over subpoenas and motions to quash them. But what is involved at bottom is not arcane at all: it is a dispute over documents which may reveal that the Brown and Williamson tobacco company concealed for decades that it knew its products to be both hazardous and addictive. The subpoenas are the means by which the company is seeking to intimidate, and in a sense to punish both Dr. Williams, the discoverer of evidence of this possible concealment, and the national legislators who are seeking to investigate the subject further and bring the results to the attention of Congress and the public.

  “There are,” Greene wrote, “several rules, even constitutional doctrines, that stand in the way of so high-handed a course of conduct, and one so patently crafted to harass those who would reveal facts.” He went on to suggest that the industry’s intensive interest in the documents’ recovery might be that they “represent the proverbial ‘smoking gun’ evidencing the company’s allegedly long-held and long-suppressed knowledge that its product constitutes a serious health hazard.”45 The ruling was a stinging blow to the companies. The documents were out. And no matter how shady or even illegal Williams’s taking them was, no one claimed they were anything but authentic. Although Williams remained in legal jeopardy— like the other principal whistle-blowers—the importance of these revelations is what ultimately kept him out of jail.

  In retrospect, the documents might very well have remained locked within the fortress of Big Tobacco; so much of what we have come to know about the history of the tobacco industry might have remained cloaked by attorney-client privilege. Williams—vilified and celebrated—is a figure of genuine significance in the history of the cigarette. At one time, he was willing to sell the documents back to the law firm from which they were taken. Of the many strategic errors of the tobacco wars, Brown & Williamson’s decision to scorn Williams was one of the most disastrous.

  Nor was Williams the company’s only demon. A Brown & Williamson senior research scientist, Jeffrey Wigand, also stepped forward, and soon there was a small chorus of former tobacco employees blowing whistles in unison. Wigand, a biochemist, was Brown & Williamson’s head of research and development, studying things like fire safety, ignition propensity, and tobacco additives, from 1989 until he was fired in 1993. He had specialized in approaches to developing safer cigarettes and had been frustrated to find his efforts repeatedly blocked. Despite his dismissal, Wigand honored his confidentiality agreement when deposed by the DOJ in its investigation into the industry’s efforts to suppress fire-safe cigarettes. At the time, he denied any wrongdoing on the part of the company. Wigand, however, would soon abrogate his severance agreement.

  In early 1994, Wigand was recruited by Lowell Bergman, a producer at CBS’s 60 Minutes, for advice on a piece about fire-safe cigarettes. Among Wigand’s assorted projects at Brown & Williamson had been to develop a se
lf-extinguishing cigarette. By the late 1970s, it had become clear that cigarettes led to as many as 30 percent of all fire-related deaths, as well as billions in property damages. Although the industry remained united in opposing fire-safe products, asserting that such cigarettes were unacceptable to consumers, it nonetheless conducted research on how to produce a cigarette that would reduce the risk of fires. At the same time, the industry worked concertedly to deflect attention from the issue by offering support to organizations of firefighters and fire-safety advocates.46

  Wigand also became a principal informant in the FDA investigation, describing to Kessler’s team how the industry enhanced nicotine delivery through the use of ammonia-based compounds, and how different types of tobacco, with varying nicotine content, were blended to assure addictive levels. And he tipped off the FDA to the industry’s use of genetically engineered plants to heighten nicotine content.47

  William Farone, a former Philip Morris chemist, also assisted the FDA in its investigation. Farone had been a director of scientific research at Lever Brothers before coming in 1976 to work at Philip Morris’s Richmond laboratories, where he was soon promoted to director of applied research. In this capacity, Farone reported to Thomas Osdene, who directed the company’s biological research programs. Farone would request experiments, which Osdene would then have conducted at Philip Morris’s European laboratory called INBIFO. This procedure was intended to keep certain projects secret and beyond the reach of American litigation.48