In fact, that’s what this trial is about. DoJ says industry actions led to deception, disease, and death, and aims to hold the industry responsible.

It’s silly to pretend the industry was held hostage by the government and gosh it wanted to put accurate warnings on the pack but the government didn’t let it. That didn’t happen.

What happened: a weak pre-emptive standard, developed under heavy industry lobbying, ended up exempting the industry from providing any real warning, any accurate statement of the risk of its product.

Do automobiles kill half their best customers?

Does beer?

Is either the leading cause of cancer death in America?

Has either killed 14 million Americans since 1964?

Of course not.

Has any cigarette pack warning informed that those facts are true for tobacco?

Of course not.

That’s absurd.

Choice has nothing to do with this. The tobacco companies are simply not permitted to put whatever they want to on the sides of cigarette packs.

The labelling of cigarettes is federally pre-empted by FTC regulation under the power of Federal law. Tobacco may NOT change the mandated warnings in any way, nor may they add additional ones. If the warning were inadequate (itself a dubious claim) it was the job of the FTC and Congress to mandate better ones, not tobacco. Furthermore, the US Supreme Court ruled in the Cipollone case that warning labels pre-empted all liability from tobacco with regards to the health consequences of smoking, except under highly specific circumstances.

And what is it that the warning labels were supposed to say, that they didn’t say? Who doesn’t already know that smoking causes disease?

Is a five paragraph laundry list listing every possible health hazard attributable to smoking really better than the simple blanket claim “smoking is hazardous to your health”? Would anyone even look at such fine print? Its not like the risks of smoking are such a big secret. . .anyone who wants to know what they are can find them easily, at will. There are health warnings right on the pack; either you heed them and choose not to smoke, or you don’t and do.

Maybe we need labels on the sides of automobiles instructing drivers not to crash them into pedestrians or the sides of buildings? Or maybe we need labels on the sides of beer bottles indicating the the contents are addictive, carcinogenic, and contribute to accidents? At what point are we going to give adults the ability to make their own choice and take responsibility for their own actions?

Incorrect.

Pack warning labels didn’t appear until 1966.

Cancer wasn’t mentioned in the warning until 1984.

“Cause” didn’t appear until 1984 either.

In 1966 the warning was an anemic “Cigarette Smoking May Be Hazardous to Youth Health”.

In 1970 it was changed to a gentle “Warning: The Surgeon General Has Determined That Cigarette Smoking Is Dangerous to Your Health”. No cause, no cancer.

And in 2004 the pack warning still isn’t the industry ‘acnowledging’ anything. The warning is attributed to the Surgeon General. Not the industry.

When criticizing Bernick’s credentials, it’s helpful if you get your history right.

Public health analysis finds that pack warning labels benefited the industry more than the public. They were weak, ineffective; they fell far from an accurate picture of what the product does to the customer and to those nearest the customer; they gave the industry teflon in court; and they pre-empted state and local measures on smoking and health:

“No requirement or prohibition based on smoking and health shall be imposed under State law with respect to the advertising or promotion of any cigarettes the packages of which are labeled in conformity with the provisions of this Act.”

This was exactly what the industry wanted. Not to inform. Not to disclose what it was saying internally about its product.

If the industry had chosen to put an accurate warning on the pack, reflecting what it knew at the time — it wouldn’t be on trial right now.

Yes, but that’s not relevant. Either a witness is properly credentialled to render an opinion as an expert in a certain area, or they are not. If the witnesses’ credentials don’t match the content of their testimony, that’s a legitimate point of criticism. If someone who is obviously better credentialled in a particular area disagrees with the supposed expert’s opinions, that’s relevant too. In this case Brandt held himself out as an expert intepreter of medical and scientific research by pointing to certain studies and concluding there was a scientific consensus. Considering that he doesn’t have the credentials that many of his medical historian peers do (ie a scientific or medical background) the criticism isn’t misplaced, particularly given the complex nature of the research involved.

The fact is, though, that the criticism wasn’t really the point of the exercise, it was just a set-up. Had Brandt presented a more comprehensive case, he could have blown easily past the credential-baiting. Bernick tripped him up not on the credentials per se, but by showing that Brandt’s testimony pointedly omitted historical facts that contradicted his position. Brandt’s job was to render an opinion; Bernick’s was to show exactly why it wasn’t a very valuable one.

>>3. Bernick can pick nits with the best of them: dates, categorical or not, statements, where; he’s good. I’d love to ask him, given that his clients didn’t publicly acknowledge that smoking causes lung cancer until 2001 or so, what evidence convinced them that had been lacking up until that time?

On a not-insignificant level tobacco has met their legal obligation and “acknowledged” that smoking can cause cancer on the side of every pack they have sold since 1964. This is an issue that’s going to come up again with regards to causality.

Maybe the DOJ will get a chance to ask that question to a gaggle of tobacco executives later in the trial (and that would be fun to watch, I admit) but I doubt they will. As part of their thesis, the DOJ is alleging a likelihood of further fraud. If the DOJ actually acknowledges that tobacco has conceded the risks of smoking, they directly undermine their own case.

I’ll bet if you got in a room with the tobacco executives, and asked them that every one of them would concede privately that one of the main reasons they publically admitted the risks of smoking was to defuse legal criticism. Part of it, no doubt, was to try to avoid appearing like reactionary laughingstocks. But so what? Even if they did the “right” thing for a slimy reason and later than they should have, they still did it. They can’t undo that now, and the DOJ is going to have a heck of a hard time proving that they will.

1. I put it that anyone who studies this industry would come to a similar conclusion, much as anyone who studied the Third Reich would conclude that force was the only way to stop it. Twisting that to appear as bias and lack of objectivity, well, I give Bernick full credit.

2. Bernick attacks Brandt for not having a medical degree. If Brandt had a medical degree, Bernick would attack him for not having a degree in history.
There’s always some credential the witness doesn’t have.

3. Bernick can pick nits with the best of them: dates, categorical or not, statements, where; he’s good. I’d love to ask him, given that his clients didn’t publicly acknowledge that smoking causes lung cancer until 2001 or so, what evidence convinced them that had been lacking up until that time?