The score so far . . .

September 24, 2004 9:46 am by Gene Borio

When I first became interested in tobacco I soon saw that there were 2 views on the subject:

1. Either tobacco was killing 400,000 people a year


2. There was a worldwide, monolithic conspiracy by virtually everyone in the non-tobacco-paid medical and scientific communities to unfairly vilify tobacco, this one thing out of all other substances and health risks.

Judging from the attack on Dr. K’s testimony, it appears the industry will try to establish the latter, although sans any unified conspiracy. Defense’s overall witness attack seems to be to show that those critical of the industry’s behavior are, individually, venal, incompetent, money-grubbing, revenge-driven, publicity-seeking types who are completely out of their depth and really don’t know what they are talking about.

In DK’s testimony, the government spent 5 pages (pp 3-8) on DK’s considerable credentials and expertise in addressing this matter, establishing that his education, work experience, scientific accomplishments and academic recognition is of the highest order possible in the country today.

Bernick came close to completely nullifying those eminent qualifications by focusing on one FDA chart, out of 178 exhibits and one aspect of nicotine/ammonia pharmacolgy. Clearly, the most damaging questions involved Kessler’s lack of in-depth knowledge of exactly how and to what degree various pH values affect the release of nicotine–even though DK averred at the beginning of the exchange that he was no expert in this area. In fact, his official testimony makes clear that he only learned of this aspect in general terms while he was at the FDA:


Based on what I learned at the Agency, increasing the percentage of drugs in the “free-
base” form may increase the rate of absorption of the drug–how fast a drug gets delivered to the body and organs such as the brain. My further understanding is that this increased rate of absorption may be responsible for an increased “kick” that is associated with the “free-base” form. . . . My recollection is that words like “free,” “unbound,” “unprotonated,” or “extractable” sometimes were used in a similar manner.


That last statement told Bernick all he needed to know, and he exploited DK’s weakness expertly. So even though DK’s testimony was 66 pages of a clear, succinct and fairly powerful recounting of 1) the reasons the FDA investigated the industry’s use of nicotine, 2) the significance of the documents the FDA discovered, and 3) DK’s judgement that the industry not only refused to cooperate with the FDA but actually “waged . . . a significant attack against the agency,” the industry found a chink in this well-constructed stone wall — a chink Bernick could worry away at until, at last, he could infer that the hole he had scooped out was representative of the entire wall, that the wall was shoddy to the foundation and close to collapse. How could Kessler presume to regulate tobacco companies over nicotine manipulation when he didn’t even undertand nicotine as well as a tobacco lawyer?

All the exquisite work by the DOJ in designing and constructing DK’s testimony was summed up by Bernick as, (paraphrase) “So you don’t really know anything. All you know about nicotine is what you’ve read in the documents. Is that all you’re here to tell us about — simply what you have read in a bunch of documents the Government showed you?”

Bernick didn’t even provide a reason, a compelling motive for DK to undertake such a politically and personally hazardous course of action against an industry known for its capacity for massive retaliation, other than a few inferences of personal aggrandizement.

DK’s testimony, even read after Bernick’s onslaught, remains a powerful statement, and you can understand the desire of the Defense to have it stricken. In fact, you have to admire the almost offhand way Bernick rose at the very end of Eubanks’ redirect to indicate the companies would be asking for such–sort of like the way a shark’s fin will softly break the surface and smoothly knife through the water. He didn’t even have to detail why–it would all be in that “short memo,” Judge. A simple matter of procedure. Judge Kessler, who has obviously been through a wide variety of attempts to have the testimony stricken, gracefully brushed this one aside also.

In essence, did the Defense completely demolish the credibility of Dr. Kessler — reducing him to a poorly-qualified fanatic with a “personal and political” agenda — in the eyes of Judge Kessler, as she weighs his expert testimony against Bernick’s dismantling?

Impossible to say, of course. But damage was done; this one seems a win for the industry.

3 Responses to “The score so far . . .”

  1. Frank H. Messer Says:

    I thought the issue of nicotine manipulation was already addressed by the industry in their response to a TV network attack. The government regulated the level that must be present in the finished product. Tobacco companies needed to added nicotine in order to repace what was lost during the production process. There was no spiking or attempt to manipulate the level beyond that mentioned above!

  2. krueger Says:

    I’m unaware of any “TV network attack” on the tobacco industry. If you’re referring to the Day One documentary, it was notable for an attack by the tobacco industry on TV: Philip Morris launched a $10 billion lawsuit against ABC, then “pursued ABC with unprecedented aggressiveness at a cost of approximately $1 million per month”
    Columbia Journalism Review, November 1995;

    ABC broke the story, but the issue isn’t ABC. The issue is, does the tobacco industry manipulate nicotine in its product, and if so, why does it?
    The evidence shows that it does, that it does so to engineer the product for addiction:

    The evidence is often the industry’s own words, in its internal memos, never intended for public reading:

    A related issue in this trial: did the industry disclose what it knew about nicotine and engineering product for addiction, and if not, what was the consequence of that?

    Here’s how Joe Califano, former Secretary of Health, Education and Welfare, addresses that question:

    “Had we known then what the tobacco companies knew and had we been privy to
    their research on the addictive nature of nicotine, the 1979 Surgeon General’s report would have found cigarettes addictive, and we would have moved to regulate them.

    Unfortunately, the president of the United States, the Secretary of HEW and the surgeon general were all victims of the concealment campaign of the tobacco

  3. Anne Landman Says:

    ABC had it only slightly wrong. There is already plenty of nicotine in tobacco to achieve the desired effects. The industry’s efforts were aimed at chemically liberating more of the already-existing nicotine. The industry’s documents are clear about the purpose and effects of the procedure to do this, called “ammonia technology.” Perhaps the most telling document is a 1973 document by RJR. It seems like this one document alone could have helped to make the case for the DOJ about nicotine manipulation, since it links the skyrocketing sales of Marlboro in the mid-1970’s to PM’s new freebasing technology (or “ammonia technology”) being employed at that time. RJR became concerned about the sudden skyrocketing sales of Marlboro, and undertook work to chemically deconstruct Marlboro to find out how it was different from their cigarettes. RJR soon discovered that PM had made a “deliberate and controlled” chemical change in the smoke of their cigarettes: PM was altering the smoke pH by adding ammonia to the tobacco, which made the smoke more alkaline. Why? Because in a more alkaline atmosphere, more of the nicotine “…occurs in ‘free’ form, which is volatile, rapidly absorbed by the smoker, and believed to be instantly perceived as nicotine ‘kick’.” These are the words Kessler remembered. The document links this pH change to increased sales:
    Title: Implications and Activities Arising from Correlation of Smoke pH with Nicotine Impact, Other Smoke Qualities and Cigarette Sales
    Type of Document: Report w/ graphics
    Author: Teague, Claude, RJR
    Date: Oct. 2, 1973
    Bates No. 500917506 -7534

    Another document (from BAT) discusses how the smoke in cigars must be made more much alkaline than cigarette smoke, so that there will be more nicotine present in freebase form, so it will be more efficiently absorbed through the oral mucosa (since cigar smokers don’t inhale):

    Type: Report
    Author: Creighton, D
    Recipient: N/A
    Litigation: Minnesota trial exhibit #11,964
    Company: British American Tobacco (parent company of Brown and Williamson)
    Document date: 19871102
    Bates No.:400237344/7360

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