by Allan Brandt
Farone was fired by Philip Morris in December 1983. A decade later, he was contacted by Kessler’s FDA investigators. “It was Cigarettes 101,” explained Mitch Zeller, who directed the inquiry for Kessler. “He was more of a teacher than anything else, very patiently explaining the fundamentals of how you make a cigarette.”49 It was Farone, code named “Philip,” who clued the FDA researchers into the fact that Merits, though low in tar, were high in nicotine. Concerned about the legal consequences of breaching his confidentiality agreement, Farone frequently reminded investigators as he led them through the intricacies of cigarette production that the information he was providing was generally available in the literature.50 Nonetheless, he provided crucial help in discrediting industry claims of naïveté about the cigarette’s addictive properties.
Farone had watched the Waxman hearings in April 1994 with surprise and outrage. His entire research program at Philip Morris had centered on two scientific realities: that cigarettes caused cancer and that they were addictive. 51 Hearing the CEOs’ flat denials in the face of what he had thought was a principled effort to rectify these twin problems moved Farone closer to a public role. He soon became a public whistle-blower and advocate for federally regulated, less harmful products, which he asserted the companies could readily produce.52
Two other former Philip Morris scientists also entered the public spotlight. Victor DeNoble and Paul Mele told Waxman’s subcommittee that Philip Morris had pulled the plug on their research into the addictive nature of nicotine. They had shown how the addictive qualities of nicotine could be enhanced through the addition of acetaldehyde to the point where laboratory rats would forgo food and water for nicotine, once addicted. Other research conducted by DeNoble and Mele centered on the development of nicotine analogs that might reduce the cardiac risks of smoking. Both programs were summarily halted by Philip Morris in 1983, at the very time that Edell was filing suit in Cipollone. In 1984, the two scientists were ordered to destroy the animals and disband the lab. Offered jobs in a Philip Morris factory, they quit.53
In January 1983, DeNoble and Mele had submitted a paper describing their findings to Psychopharmacology. The paper, entitled “Nicotine as a Positive Reinforcer in Rats,” was withdrawn prior to publication as executives and lawyers became anxious about the legal implications of internal research explicitly confirming the addictive properties of nicotine. Eventually, the paper found its way to Kessler, for whom it constituted clear proof that the industry had both conducted extensive addiction research and suppressed the results.
Lowell Bergman realized that in Wigand he had a potentially major story for 60 Minutes. But Wigand, like Williams and the other whistle-blowers, had significant concerns about his personal legal vulnerabilities if he talked. It had been risky for him to talk to Kessler, but at least those interviews had been conducted in secret, and in their early conversations Wigand refused to discuss his own experiences. Now, Bergman wanted him to go public with his claims against the company. Over recent decades, the industry had developed precise, typically lifelong confidentiality agreements designed to ensure that any current or former employees who were tempted to tell tales of work inside Big Tobacco would face severe consequences for doing so.54 Bergman helped Wigand get an attorney to advise him about possible liabilities should the companies claim that he violated his agreement. Still worried about possible criminal violations, Wigand was referred to none other than Richard Scruggs, who agreed to represent him free of charge.
The evolving interests of the plaintiffs’ bar, tobacco litigation, and the whistle-blowers were thus converging to create a powerful challenge to the industry. Having successfully brought Williams and his box of documents in from the cold, Scruggs would now become Wigand’s main protector as well. For Scruggs, who was busily laying the framework of a massive set of suits against the industry to recover state Medicaid costs, it was a win-win. He did warn Wigand, at considerable length, about the legal and personal attacks that Brown & Williamson was likely to bring against him. “These are tough choices for you and your wife,” he wrote to Wigand. “Given the magnitude of this decision, I cannot make a recommendation about whether you should act or risk inaction. I can only assure you of my commitment to [protect] and/or defend you to the full extent of my abilities, whichever decision you both make.”55 After intensive negotiations, CBS, in a somewhat unusual move, agreed to indemnify Wigand for any legal costs arising from his acting as their informant.56
In August 1995, Wigand finally sat for an on-camera interview with Mike Wallace. Just before he went on camera, Bergman offered Wigand a handwritten note promising not to air the interview without his permission. Bergman later explained that this was but a courtesy and that Wigand did not have veto power over the segment. Working with whistle-blowers like Wigand required an unusual combination of hand-holding and support, as well as a deep commitment to getting the story into the public domain. In the interview, Wigand leveled a number of charges against his former employer. Especially significant was his allegation that Thomas Sandefur’s testimony before the Waxman committee was a perjury. “I believe he perjured himself because I watched those testimonies very carefully,” he told Wallace. According to Wigand, Sandefur had once described cigarettes to him as “a delivery system for nicotine.” He now explained publicly what he had earlier told FDA investigators about ammonia and “impact boosting.” “There’s extensive use of this technology which is called ammonia chemistry that allows for nicotine to be more rapidly absorbed in the lung and therefore affect the brain and central nervous system,” he told Wallace. Wigand went on to note that when he worked for Brown & Williamson, his scientific reports were edited by legal counsel to ensure that they were “sanitized” of any references to the hazards of cigarettes. “The lawyers intervene and then they purge documents. And every time there was a reference to the words ‘less hazardous’ or ‘safer’” the lawyers would excise it. Wigand reported that in a personal conversation with Sandefur he was told, “I don’t want to hear any more discussion about a safer cigarette. . . . We pursue a safer cigarette, it would put us under extreme exposure with every other product. I don’t want to hear about it any more.”57
Wigand also charged that additives in tobacco were known carcinogens, and that when he apprised Sandefur of the risks of coumarin and other additives, he was told they could not be removed. Wallace asked: “In other words, what you’re charging Sandefur with and Brown & Williamson with is ignoring health considerations consciously?” “Most certainly,” replied Wigand. Later in the interview, he claimed that in the last year he and his family had received death threats and that he had started to carry a handgun.58
As Bergman moved ahead with the Wigand piece, ABC surprised the broadcast industry by suddenly agreeing to settle its suit with Philip Morris and even to offer a public apology. The settlement shocked ABC’s news division as well as outside journalists. Proving libel is no simple matter; Philip Morris and R.J. Reynolds would need to demonstrate that ABC had shown a “reckless disregard for the truth” or engaged in “conscious falsehood” by using the word spiked. All ABC would need to demonstrate in order to be exonerated was that the broadcast was “substantially true.” And many observers believed it was. On the eve of the trial, ABC’s outside attorneys had appeared confident of success. In two mock trials staged for the defense, ABC had emerged victorious.59 An ABC lawyer wrote to a potential witness:We are hard at work preparing to defend the libel suit. . . . I am pleased to be able to report that the course of pretrial discovery, despite strenuous efforts by Philip Morris to stonewall, amply confirms the accuracy and fairness of the broadcast. . . . Although we have taken on Big Tobacco in Marlboro Country, we are confident of victory as any prudent trial lawyers should be.60
The depositions turned on the word spike and evidence that outside suppliers produced nicotine extract for the tobacco industry. The news division was eager to see the case proceed. New revelations about the manufacture of cigarettes were li
kely to come out in the course of the trial, reporters believed, and would not only substantiate claims in the report but lead to additional support for regulating the product. ABC’s legal team had requested and ultimately received thousands of industry documents explicating the complex processes by which tobacco is turned into cigarettes, the character of nicotine, and the state of industry knowledge.
But as the trial lawyers confidently prepared this defense, other lawyers inside ABC were negotiating a settlement with Philip Morris. As the case moved toward trial, it became clear that the public airing of this dispute would be damaging not only to the tobacco companies but to the network. Day One had been forced to turn over notes, video tape, and research on which the piece had been based. These would inevitably make it look like the reporters had manipulated the story, even as they charged that the companies manipulated nicotine. Both industries apparently saw a trial as a threat to the image of their respective products. With so much at stake, a negotiated settlement began to look prudent to both parties. In addition to filing suit against ABC, Philip Morris had reportedly threatened to pull its advertising for brands like Kraft Foods and Miller Beer, which amounted to more than $100 million a year.61 It is not surprising that ABC blinked first.
In August 1995, ABC offered a public apology to Philip Morris and R.J. Reynolds. According to the agreement, the network would apologize twice, first on Monday Night Football and again on Day One. The carefully worded statement said: “We now agree that we should not have reported that Philip Morris and Reynolds add significant amounts of nicotine from outside sources. We apologize to our audience, Philip Morris and Reynolds.” ABC also paid legal expenses of some $15 million to the tobacco companies. Sources inside the news division at ABC reported widespread dismay that company executives had failed to stand behind the story.62
Many saw the apology as an example of powerful corporate interests trumping journalistic practice.63 It soon became clear that executives at Walt Disney Company, on the verge of acquiring ABC, wanted the case settled before the purchase went into effect. The apology and legal fees were dwarfed by the billions at risk in open court. ABC continued, despite the apology, to insist that the premise of the story—that tobacco companies do meticulously control the level of nicotine in cigarettes to maintain users’ dependence—stood up to challenge. But this assertion was merely a whisper in the context of their public apology and the legal settlement. Bogdanich and Martin refused to sign the settlement. Although ABC renewed his contract, Bogdanich soon left to take a position at 60 Minutes.64
The settlement required ABC’s lawyers to return thousands of documents from the tobacco companies that had been produced in the discovery process. No reporters were provided access to these materials. Waxman requested that the industry voluntarily release these documents, but to no avail. Antitobacco advocates sharply attacked ABC and parent company Capital Cities for “caving” to the industry. “This lawsuit was never about libel,” said Jane Kirtley, executive director of the Reporters Committee for Freedom of the Press. “It was about intimidation and discouraging other news organizations from covering them.”65 And indeed, there was data to suggest that the broadcast media began to shy away from tobacco reporting. According to Andrew Tyndall, editor of the Tyndall Report, a media-watch newsletter, “In the first six months of 1994, before Philip Morris sued ABC for libel, the three broadcast networks devoted 177 minutes to the tobacco story. In the second half of 1994, after the lawsuit was filed that May, the coverage dropped to 43 minutes.” He concluded, “There definitely was a chilling effect of the lawsuit.”66
Gloating in a rare public victory, Philip Morris took out full page ads in newspapers and magazines reprinting the ABC statement and declaring “Apology Accepted.”67 The ad continued, “As for the group of people who eagerly embraced the ‘spiking’ allegation to serve their ongoing crusade against the tobacco industry—we stand ready to accept their apologies as well.” But as more evidence became available, it became increasingly clear that Bogdanich had, in fact, broken a major story.
The chilling wind from the ABC settlement blew through “Black Rock,” the granite skyscraper that housed the legal and financial headquarters of CBS. Certainly, Lowell Bergman, Mike Wallace, and 60 Minutes executive producer Don Hewitt were convinced that the Wigand interview was a blockbuster. When Hewitt saw a rough cut of the piece in early September 1995, he apparently told Bergman it was “Pulitzer Prize” material.68 But when the final piece went to CBS corporate lawyers in October, they decided to kill it. The settlement of the Day One suit weighed heavily on discussions at CBS. Executives feared that a lawsuit might easily cost billions. Any case would likely be tried in tobacco-friendly Kentucky, where there were no caps on damage awards. According to some reports, people at CBS talked about whether the story was worth “betting the company.”69 Laurence Tisch, CEO of CBS and father of Andrew Tisch, CEO of Lorillard—who had testified at the Waxman hearings—denied any involvement in the decision. But among the revelations in the 60 Minutes segment was that the younger Tisch was among the seven CEOs being investigated by the DOJ for possible perjury violations.
In its decision to cancel the broadcast, CBS cited the risk of being accused of “tortious interference,” the claim that its producers had acted illegally in encouraging Wigand to break his confidentiality agreement with Brown & Williamson. Hewitt, Bergman, and Wallace contended that the network had not been forthright with them in pulling the piece. “I think we were deceived and lied to. I think that more is going on here than we even know now,” fumed an indignant Bergman. Hewitt said in a speech at the National Press Club,
We have a story we think is solid. We don’t think anybody could sue us for libel. There are some twists and turns, and if you get in front of a jury in some states where the people on that jury are all related to people who work for the tobacco companies, look out. We may opt out of the line of fire. That doesn’t make me proud, but it’s not my money. I don’t have 15 billion. That’s Larry Tisch.70
Wallace, who years earlier had been a pitchman for Philip Morris, expressed disappointment but defended CBS, saying that the “ABC lawsuit did not chill us as journalists from doing the story. It did chill the lawyers who with due diligence had to say, ‘We don’t want to, in effect, risk putting the company out of business.’. . . They proved in the ABC suit that they [the tobacco industry] will go to the wall.”71
Most First Amendment experts argued that threats of suit for tortious interference were weak and unlikely to cause significant liability for CBS.
An analysis of the case at the New York Times concluded, “Without putting up a fight, CBS has managed to create an ugly precedent. ‘Tortious interference with contract’ has now been added to the legal armory of enemies of the press without so much as a single decision endorsing it.” James Goodale, the general counsel for the New York Times during the Pentagon Papers case, concluded in the New York Law Journal that it would have been very difficult, if the story were true, for CBS to lose a suit for broadcasting the Wigand piece. Calling the hypothetical trial a “slam dunk win” for CBS, Goodale noted, “Once the court is required to determine whether the publication of embargoed facts is in the public interest, the case is over.”72 According to some media critics, CBS’s lack of fortitude was likely to strengthen the confidentiality agreements that had long stymied the flow of information and reporting on the tobacco industry, at great public cost. As Goodale explained, “CBS has now cultivated the impression that a company can bring and win an interference suit against the press. This will surely encourage corporations to require secrecy agreements of their employees, encourage judges to consider such suits seriously and encourage the public to believe that the suits are legitimate.”73 Daniel Schorr, who had helped to bring the Pentagon Papers to light while a reporter for CBS in the 1970s, expressed regret about the network’s weakness in the face of legal threat:The tobacco industry . . . has apparently settled on the threat of lawsuit as a key weapon in it
s defense against an increasingly unfavorable press. The weapon turns out to be particularly potent in a period of network acquisition where decisions are made under the influence of money managers anxious to dispel any cloud on the financial horizon. The news managers submit, gracefully or less so.74
At the time they decided to kill the 60 Minutes story, CBS executives were in the final stages of negotiating a $5.4 billion merger with Westinghouse. Just as with ABC and Disney, pending litigation was considered a problem. Some observers believed this was the key factor in CBS’s decision. “The CBS and ABC experiences are dismaying for what they portend,” wrote New York Times media critic Walter Goodman, “The reporters’ job is to weigh the price of courage. The probability in this time of big-money takeovers and bottom-line pressures on news departments is that journalistic daring will be declared a debit by the powers that live by corporate balance sheets.” The tobacco companies had used the threat of litigation to make a powerful statement that they would use every available method to silence critics and cool the media.
Despite the networks’ public embarrassment over the ABC settlement and the CBS decision to pull the Wigand piece, the ironic reality was that the tobacco companies had lost the battle. A coherent account of industry activity with regard to tobacco and nicotine was emerging, supplied by a group of former employees who threatened to turn the industry inside-out. Someone at CBS leaked Wigand’s story to the New York Daily News. Three months later, the Wall Street Journal obtained and published transcripts of the CBS interview. Now, with the threat of legal action much reduced, in an act of little courage, 60 Minutes ran a revised version of its original story.75