Mr. Bernick tried several different tacks to try to undercut Dr. Henningfield’s (and most readers’) characterization of the ‘63 Yeaman memo. He succeeded in the weaker tacks, but was thwarted in his stronger tacks–often at the last minute–by the repeated objections–most of which were sustained–of DOJ attorney Andrew Goldfarb.
Mr. Bernick began by offhandedly referring to Yeaman’s nicotine language as “waxing eloquent,” then he sought to show that Mr. Yeaman’s language actually came “straight out of” Sir Charles Ellis’ language in the 1962 Southampton Research Conference. And yes, the language was similar; but not “identical.”
Mr. Bernick then attempted to show that the top lawyer at B&W (Yeaman) seemed to have no problem with communicating the Battelle results to the Surgeon General’s Advisory Committee. Dr. Henningfield noted that the reason for such potential communication seemed to be to “trump” the expected adverse findings of the Surgeon General’s Report.
And since the results were never communicated, Mr. Bernick went on to try to demonstrate a) it was commonly known already in 1964 that nicotine in smoke led to a reinforcing behavior, and b) that, even if the results had been communicated, it would have made no difference to the final 1964 SGR. Interestingly, this last point was attempted through Dr. Benowitz’ testimony in this case.
Mr. Bernick tried to look at the memo in the context of Dr. Henningfield’s previous testimony, also in this case, that addiction could be defined as behavior difficult to stop in the face of harm, or relative loss of control. Mr. Bernick said Yeaman never talked about loss of control. Dr. Henningfield shot back, yes, he did–he said addiction.
This admittedly semantic discussion was interrupted often by Mr. Goldfarb, and his objections were sustained more than not here–often just as Mr. Bernick seemed to be gathering a head of steam.
Similarly, Mr. Bernick did not get far exploring the implied assumption in the Battelle and Yeaman documents that B&W and BATCo considered nicotine critical in smoking behavior (Dr. Henningield’s testimony holds that the companies wouldn’t study nicotine at all if they didn’t think it critical). Mr. Bernick wanted to show that B&W designed its cigarettes not for nicotine, but for tar. But in the limited scope of Judge Kessler’s allowance for his re-cross, he was frustrated at every turn.
Mr. Bernick was thwarted by the limits imposed on him by Judge Kessler in this instance. But he’s an agile and canny wordsmith; he may well get further in his next attempt wtih another, less brilliant witness. But the DOJ has a good idea of his possible approaches now.
SELECTED TEXT OF Implications Of Battelle Hippo I & II And The Griffith Filter:
The determination by Battelle of the “tranquilizing” function of nicotine, as received by the human system in the delivered smoke of cigarettes, together with nicotine’s possible effect on obesity, delivers to the industry what may well be its first effective instrument of propaganda to counter that of the American Cancer Society, et al, damning cigarettes as having a causal relationship to cancer of the lung…
We must, I think, recognize that in defense of the industry and in preservation of its present earnings position, we must either a) disprove the theory of causal relationship or b) discover the carcinogen or carcinogens, co-carcinogens or whatever, and demonstrate our ability to remove or neutralize them. This means that we must embark — in whatever form of organization — on massive and impressively financed research into the etiology of cancer as it related to the use of tobacco…
Certainly one would hope to prove there is no etiological factor in smoke but the odds are greatly against success in that effort. At the best, the probabilities are that some combination of constituents of smoke will be found conducive to the onset of cancer or create en environment in which cancer in more likely to occur. The TIRC cannot, in my opinion, provide the vehicle for such research. It was conceived as a public relations gesture…and it has functioned as a public relations operation. Moreover its organization, certainly in its present form, does not allow the breadth of research — cancer, emphysemas, cardiovascular disorders, etc. — essential to the protection of the tobacco industry…
“The reasons for the ‘pleasure of smoking’ must be found partly in the relief of anxiety that cigarette smoking brings so constantly, and in such a very short time.
“This sedative - or soothing - effect of cigarette smoking and of nicotine is however very differnt from the ‘tranquillizing” effect as it was defined by pharmacologists after the discovery of the Rauwolfia alkaloids. Tranquillizers are highly effective in the management of overactive psychotic patients and, as such, are largely used in psychiatry; nicotine is certainly devoid of such effets.
* * *
“Our investigation definintely shows that both kinds of drugs (Rauwolfia alkaloids and nicotine) act quite differently, and that nicotine may be considered (its cardiovascular effects not being contemplated here) as more ‘beneficial’ - or less noxious -thatn the new tranquillizers, from some very important points of view.
“The so-called ‘beneficial’ effects of nicotine are of two kinds:
“1. Enhancing effect on the pituitary-adrenal response to stress;
“2. Regulation of body weight.
“These effects do not seem to be shared by reserpine, which on the contrary shows undesirable side-actions that are not given by nicotine, i.e., a nearly complete blockade of gonadic and thyroid activities, reflecting most probably a general blockade of the hypothalamo-pituitary system, which normally controlls all the endocrine activities.”
Moreover, nicotine is addictive.
We are, then, in the business of selling nicotine, an addictive drug effective in the release of stress mechanisms. But cigarettes — we will assume the Surgeon General’s committee to say — despite the beneficent effect of nicotine, have certain unattractive side effects:
1) They cause, or predispose to, lung cancer.
2) They contribute to certain cardiovascular disorders.
3) They may well be truly causative in emphysema, etc. etc.
We challenge those charges and we have assumed our obligation to determine their truth or falsity by creating the new Tobacco Research Foundation. In the mean time (we say) here is our triple, or quadruple or quintuple filter, capable of removing whatever constituent of smoke is currently suspect while delivering full flavor — and incidentally– a nice jolt of nicotine. And if we are the first to be able to make and sustain that claim, what price Kent?
Dare we as a matter of policy make such claims? If they are true and if we make no claim of freedom from danger — indeed, if we cry caution — why should we not?