WED: Dr. Dixon’s Triumph [Updated 9/7/05 with Sheffler Clarification)

March 10, 2005 6:52 am by Gene Borio

Let me admit I’m pretty confused and troubled by the Dixon testimony, which introduced several concepts that a) I’d never heard of before, and b) seem to be unique to the tobacco industry, yet which Dr. Dixon asserted are backed up in reviews of the literature, c) were virtually uncontested in DOJ attorney Sharon Eubanks’ uncharacteristically weak cross-examination, and d) brought into sharp relief this strange parallel, almost Bizarro world of extensive, in-depth tobacco industry research.

1. First of all, the 2-step inhalation process Dr. Dixon asserted is new to me. As Judge Kessler said in her question on this, “You sharply differentiate between the act of puffing, taking the smoke into the mouth, and inhaling, ie, down into the lungs.” Dr. Dixon is clear in his written testimony:

“First is the puff, which is entirely a mouth process, and the second is the inhalation which occurs after the puff is done. “

In recalling my own smoking behavior, this makes some sense, and the mouth-only-suction idea certainly would apply to cigar smokers, who in theory skip the second step entirely.

But for cigarette smoking, to “sharply” differentiate the two steps seems entirely wrong. Some mixture of this process seems right to me.

2. Still, even if not entirely separate, this 2-step process diminishes the effect of “impact” (on the back of the throat region) as a factor in a smoker’s ability to instantly control intake, or puff volume. Dr. Dixon’s experiments seemed to indicate that puff volume was controlled by the mouth’s sensory apparatus (”mouthfeel”) and was determined by tar, not nicotine.

This would refute Dr. Burns’ testimony that smokers regulate their intake because of the effect of nicotine on the “impact” area. (This “impact” word, by the way, has been used for a long time exclusively in the tobacco scientific community. In the late 90s, it migrated into the scientific community. Roughly, it is nicotine tingling the musculature in a region in the back of the throat, sending nerve signals ( notnicotine) to the brain.

3. Dr. Dixon talked about how another Doctor has discovered an anomaly in one table of BAT’s notorious Leaf Blender’s Manual (1991). Dr. Dixon’s testimony clearly implies (without stating) that the whole idea within BAT that pH increases the availability of nicotine was derived from the LBM, and further, that the LBM “researchers” had concluded that “there was an increase in nicotine transfer as the result of using ammoniated sheet” based on “misinterpreted data” from one table within the LBM.

Basically, Dr. Dixon showed that there was not an increase in nicotine transfer efficiency. Transfer efficiency means, per se, that more nicotine is extracted from the tar. Yet the table clearly shows the tar/nicotine ratio remains the same, ie, even though the nicotine does go up with use of the ammoniated sheet, so does the tar, in general (Ms. Eubanks showed one slight anomaly in the table).

Dr. Dixon showed the tar and nicotine levels rose because the ammoniated sheet caused the puff volume to rise, ie, there was simply more smoke measured, therefore more nicotine AND tar were measured. The ratios of these, however, remained basically the same, ie, there was no increased efficiency of nicotine transfer into the gaseous phase.

Yet though Dr. Dixon said the mistake was pointed out to B&W shortly after the release of the LBM, there seems to be no later iteration of it that has made this correction.

4. Dr. Dixon seemed to agree on some amount of compensation for most smokers–around 50%, ie, if a smoker switched down to a lower tar cigarette, he would compensate a bit, getting a reduction in tar and nicotine, even if only half the reduction that would be predicted from FTC measurements. This would contrast with Monograph 13’s conclusion of complete compensation (100%).

In court, Dr. Dixon used only one technique of compensation to seemingly conclude compensation was incomplete–puff intensity. But in his uncontested written testimony, he seemed to effectively dismiss the other methods of compensation, ie, number of puffs per cigarette, number of puffs per day, speed of puffing, and vent-hole blocking.

Dr. Dixon addressed other technical areas in his written and live testimony, and seemed to come off as a very strong witness, whose assertions were powerful, even if many were unpublished. They did not seem to be seriously brought into question by Ms. Eubanks’ short redirect.

B&W’s David Bernick seemed quite pleased with BATCo’s Bruce Sheffler’s examination of Dr. Dixon. Another courtroom observer felt Ms. Eubanks failed to understand “how science works.”

I’ll Give You Three! One- Two–

Mr. Sheffler brought in a lawyering technique we haven’t seen much of so far–physical intimidation. (We did saw a variation of this technique dealt with humorously on “Boston Legal” a few weeks ago.) I used to think of Mr. Sheffler as “The Colonel” before I knew his name–because of his large frame, abundant white hair, big white mustache, and smiling, confident, laid-back mein.

Well, Wednesday morning, Judge Kessler began court by letting everyone know she was in a foul mood over unresolved issues concerning Dr. Dixon’s exhibits. At one point, when Mr. Bernick rose to assist Mr. Sheffler, she sat him back down with, “Mr. Bernick, we have one lawyer per side, especially when we get to something as annoying as this.”

And perhaps Mr. Sheffler did need help. He had to resort a couple of times to The Voice. All the lawyers have the ability to strengthen their voices, but more than most, Mr. Sheffler can assume that certain tone a father may use when his child has just stepped over the line, to let the child know that any more nonsense may be severely–and quote possibly physically–punished. His voice gets noticeably deeper, stronger, far more insistent and forceful–intimidating, actually, and I’m sure that’s part of its purpose. At one point in arguing with Judge Kessler yesterday morning, Mr. Sheffler used The Voice even rougher than I’d heard it before. But it doesn’t work with this judge, especially in the mood she was in. She denied his argument with aplomb and went on to the next matter.

Then, during Mr. Sheffler’s redirect of Dr. Dixon, Ms. Eubanks rose to object to a line of questioning. Mr. Sheffler seemed to know exactly what Ms. Eubanks was objecting to almost before the words left her mouth or she had even gotten fully to the podium. In sudden response to the beginning of her objection, he raised his hand sharply in exasperation, as if to say, “OK! If I have to take the long way around I’ll take the long way around!” and immediately changed his line of questioning and went on. Ms. Eubanks sat back down.

Mr. Sheffler is not a small man, and seeing that large hand swing up in the air so closely to Ms. Eubanks was a bit worrying. Ms. Eubanks may not be so quick to fly up to the podium on an objection next time.

Perhaps I’m unfairly denigrating Mr. Sheffler, but if there’s one thing I’m learning in this trial, it’s that with lawyers, few things happen accidentally.

[Note: By the end of the trial, I decided that Mr. Sheffler is simply this big ol’ guy, a bit emotional and physically demonstrative, and that he is innocent of any allegations of physical intimidation. What finally convinced me was a day late in the trial, when Mr. Sheffler was strenuously arguing a point to Judge Kessler. Mr. Bernick approached the podium to assist–and almost got clocked himself! Mr. Bernick–who, considering the size differential may have gotten tossed all the way to the gallery–turned around quickly with a wry smile celebrating his narrow escape. Mr. Sheffler, reacting to the gallery’s laughter, turned to see Mr. Bernick there and asked, “Oh! Did I–?”

Judge Kessler, ever the jurist, assured him it was “just a mild case of assault and battery.”

My apologies to Mr. Sheffler for the rather ugly insinuation.

–gb, September 7, 2005]

5 Responses to “WED: Dr. Dixon’s Triumph [Updated 9/7/05 with Sheffler Clarification)”

  1. tobacco observer Says:

    Maybe the two sides ought to simply resolve this dispute by having a gang fight in the street outside the courtroom; Tobacco’s lawyers on one side, and the DOJ’s lawyers on the other.

  2. krueger Says:

    Sure, the industry is arguing that ammonia wasn’t about drug delivery. It has to.

    This is one reality that the industry can not admit: it engineers its product for addiction. It just can’t tell the truth on this. It knows its PR on “choice” would never square with the reality of product engineered for addiction.

    So instead we get amazing verbal dancing from the industry to “explain” the perfectly reasonable reason it engineers the product a certain way, the reason that has nothing to do with addiction. Nicotine manipulation is for “flavor”. And so on.

    Here the industry argues that it doesn’t use ammonia to increase nicotine transfer. Somehow everyone inside the industry who got that idea was mistaken. The industry scientists who said that in so many words, in private, well, they didn’t know what they were talking about.

    The problem for the industry is its strategy has become obvious: engineer a product that registers happy numbers on the smoking machine and delivers measured doses of nicotine to the customer, then push that product as safer. Keep sales high, keep customers addicted, undercut quitting, keep America smoking.

    Ammonia, other additives, hidden vent holes, industry knowledge of smoker compensation, and billions of dollars of promotion were all part of that strategy.

    So industry’s does some dancing here to give some other reason. It argues that compensation wasn’t a result of industry ammonia engineering because (start the dance!) the product as engineered didn’t affect the customer in the way claimed, although in a related way, thus the effect wasn’t as large, thus the deception of the published nicotine number wasn’t as large, because the sensory experience was driving smoking behavior, not drug delivery, and the sensory experience came from throat puffing not lung inhaling, because it’s really about stimulation of throat…it’s some impressive dancing.

    To support that, the industry argues that “impact” is a sensory experience, not drug delivery. It cites a mass of technical detail on this, which is largely conveniently outside peer review, thus amounting to little more than assertions by people with an incentive to make those assertions. Stripped of the fog of technical detail, the argument is really about putting as much distance as possible between “impact” and drug delivery.

    Yet in the industry’s private documents that’s not a fine distinction.

    Sure, there’s an associated sensory experience. The industry knows that. What the industry also knows is, the customer uses the product because of the drug delivery, not the sensory experience. A cigarette that provided the sensory experience without the drug delivery wouldn’t sell.

    What the industry also knows: the sensory experience quickly becomes a secondary reinforcer. The “mouth feel”, however wonderful in and of itself, becomes a good deal more when over time it comes to predict nicotine delivery. Thus sensory aspects become inextricably linked to addiction, and engineering for addiction.

    So pretending “impact” is merely the sensory experience is, how do we say this, deceptive. But it fits in so well with the dance.

    The industry’s history of euphemism and code words is illuminating here. “Young adult” is industry code for teen. “Biologically active” is industry code for cancer-causing. “Satisfaction” is industry code for the pharmacological effects of nicotine. “Impact” is industry code for nicotine delivery.

    What you notice about industry code words is, they’re seldom completely wrong. They’re well designed that way. They provide a cover for something different from the usual meaning of the word, yet they also provide deniability for the euphemism itself. And they’re conveniently vague.

    So for example “young adult” is industry code for teens. Sure it might also include in some 18 or 19 year olds, or even 25 year olds. The word conveniently blurs that distinction. Inside the industry it’s well understood that “young adult smokers” really means teen smokers. Yet the industry gets to pretend it really meant customers no younger than 18. Similarly the industry term FUBYAS (”First Usual Brand of Young Adult Smoker”). The industry gets to pretend it means what the 20 year olds like. Insiders know the industry really means cigarettes that attract 14 year olds.

    It’s the same with “impact”. It’s industry code for nicotine delivery. For what gets and keeps the customer addicted. But the word is nicely vague, could refer to the sensory experience as well, could even include all of that. What it really means is product engineered for addiction, product that delivers enough nicotine to create and sustain addiction, yet that flies under the radar for FTC nicotine numbers.

    Understanding the code is useful both in understanding the strategy and following the verbal dance that pretends there was some other reason.

    So: why ever would the industry argue it was tar, not nicotine, that provided impact? Because that exploits the vague nature of “impact”, blurs it further. Is it completely wrong? Probably not — probably mouth feel has some nonzero effect — but of course that’s not what the industry means when it says “impact”: it means nicotine delivery.

    And: why all the distinctions between mouth and throat and lung, puff and inhale, absorb here versus absorb there, stimulate this versus stimulate that? Probably because that too exploits the blur of “impact”, adds in mind-numbing amounts of technical detail, and uses “impact” as if it were merely a sensory experience.

    My guess on the rhetorical aim here: pick nits with the side issue of compensation; derail the main issue of secret engineering of product for addiction.

    When I say compensation is a side issue, I don’t mean it’s unimportant.

    But consider: suppose the engineering didn’t generate as much change in a particular smoking behavior as once thought, but was all the same aimed at creating and sustaining addiction. And did so, quite effective, exactly as designed. As a result the industry made billions, millions of customers were deceived, and millions died. Added to an epidemic of horrible and completely preventable disease. This is the reality of industry product engineering and the main issue. Compensation is a side issue.

    The main issue is product engineered to generate misleading FTC numbers, to thereby look safer to the customer, but in fact deadly and addictive. That product has now killed millions of people. Compensation is a related issue, it’s part of the story. But the story is how and why Big Tobaccco turned the cigarette into a highly engineered product optimized for addiction. And what resulted from that.

  3. tobacco observer Says:

    >>>A cigarette that provided the sensory experience without the drug delivery wouldn’t sell.

    It wouldn’t “sell” because it can’t possibly exist. Without the nicotine there is no equivalent “sensory experience”. Might as well be selling near beer and decaf coffee. . .all of the flavor and none of the. . .er. . .”impact”.

    >>>The main issue is product engineered to generate misleading FTC numbers

    I would posit that the “main issue” here is the alleged violations of RICO 1964.

    The fact that the FTC “cambridge method” test is intrinsically inaccurate and/or easily is interesting, but that’s hardly tobacco’s fault! Philip Morris, for example, pointed out specifically in open hearings in 1967 before the FTC, that the then proposed FTC testing standard in use today, would be intrinsically inaccurate, and not reflective of what smokers actually inhale. They also pointed out specifically AT THAT TIME that various smokers could smoke in different ways to extract differing amounts of tar and nicotine out of a cigarette (ie “compensation”).

    So while the gov’t alleges ‘criminal conspiracy’ the truth is these issues have never been a secret. Everyone involved in the industry knew about the test inadequacies for decades, including the FTC. So its more than just a little bit hypocritical of the gov’t to turn around now and accuse tobacco of (legally) designing cigarettes that can “beat” their poorly-designed test, when tobacco itself pointed out beforehand that the tests wouldn’t work! If the FTC tests are so terrible, why doesn’t the gov’t simply mandate better ones? They’ve had forty more years to develop them, and better ones already do exist.

    >>>Here the industry argues that it doesn’t use ammonia to increase nicotine transfer.

    They argue that smokers get the same amount of nicotine with ammoniated cigarettes. . .and its probably true. As an imperfect analogy its like the difference between shots of whiskey and glasses of beer. Same amount of alcohol. . .just a bit more “kick” (excuse me . . .”impact”) with the shots of whiskey since they are absorbed faster.

    >>>But the story is how and why Big Tobaccco turned the cigarette into a highly engineered product optimized for addiction. And what resulted from that.

    That would make an interesting story, though I’m not quite clear on what that has to do with RICO violations.

    Another, possibly more relevant “story” is how a five year long, multimillion dollar gov’t investigation of tobacco on criminal RICO charges, involving FBI agents, surveillance, discovery, and convening multiple grand juries came up completely empty. . .yielding no indictments, and no convictions. The numerous investigators concluded that they simply didn’t have a case they could make against tobacco and dropped the matter entirely.

    Nearly immediately thereafter, after collapse of the McCain tobacco bill, and in response to requests from the Clinton White House, the then sitting Attourney General stated after due investigation that the DOJ had “no course of action” to puruse Tobacco for Medicare recovery. Nevertheless, the Clinton administration pushed this multifaceted lawsuit, with the intent of extracting “massive monetary damages” from the cigarette makers (as documented by the LA Times from “secret internal” communications).

    Unsuprisingly, the majority of this crap-shoot was discarded almost immediately by the Federal Judge in this case, who quickly decided that the gov’t had no valid legal claim to healthcare recovery costs from tobacco. What was left, the civil RICO trial going on right now, was literally tacked on as an afterthought.

    This current civil RICO suit reflects an unprecedented attempt at expansion of the gov’ts powers in asking for types of remedies never before granted in any prior civil RICO suit. The civil suit is nice because it avoids the minor setbacks that scuttled the criminal RICO investigation, such as statutes of limitations, juries, having to prove issues “beyond a reasonable doubt”, 5th amendment protection, etc. Now, with the recent decision by the DCCA on disgorgement, its been shown just how legally askew this civil RICO case is. Simply put, big brother has just spent $136 million of the taxpayers money on a five year long lawsuit asking for things they aren’t legally entitled to get.

    While the trial lingers on, the “moral” of this story is that this entire lawsuit has never been about reforming the tobacco industry. Since its inception, its stated goal has been to bypass the legislative process to extort even more money from Tobacco. Forget for the moment the fact the the state and gov’t take in several times the amount of revenue from smokers as the Tobacco companies do, if smoking is so darn bad, why not simply ban it? If tobacco is misbehaving, why not pass laws preventing future misbehavior (rather than attempting to improperly apply existing laws never intended for that purpose)? What happened to the FDA regulation of tobacco?

  4. krueger Says:

    Sorry, it is exactly Big Tobacco’s fault that it designed a cigarette to fool FTC tests, mislead the customer, and misinform the public:

    As regards the legal analysis, I’m sorry I can’t contribute on that; I’m not a lawyer. It does remind me however of legal analyses by financial analysts. Apropos of which:

    Wake-Up Call / The Tobacco Tar Pit
    by David Smith / Columnist
    Monday July 17, 2000

    Tobacco analysts are a unique and distinctive group on
    Wall Street. For one thing, they would to a man prefer
    to flack for the tobacco industry than actually make a
    correct investment recommendation and be seen to make
    one. As a result of being so wrong for so long, Wall
    Street’s tobacco analysts have probably cost investors
    as much money as anyone engaged in lawful activities
    there ever has - so much that perhaps an enterprising
    lawyer could work up a class action lawsuit against them!

    The other unique feature of the tobacco analysts is
    that they are all keen students of law, as they must
    be since their industry’s outlook is completely
    dominated by its legal issues. But they always seem to
    read the law very narrowly, in the way that favors
    their clients, er, I mean companies.

    An example:

    An example: March 2001: Brown and Williamson, having lost its final appeal, paid $1,087,191 to Grady Carter. December 16th, 2002: Fitch ratings “analyst” Judi Malter said “Major tobacco firms consistently appeal adverse verdicts and they have not lost a case on appeal which resulted in a payout”.

    I like to get my legal analysis from a legal expert.

  5. krueger Says:

    “A cigarette that provided the sensory experience without the drug delivery can’t possibly exist.”

    Turns out it can.

    A 1972 internal memo by a Philip Morris scientist contended, “no one has ever become a cigarette smoker by smoking cigarettes without nicotine.” That was proved when the company unsuccessfully introduced the nearly nicotine-free Next. The industry claimed that smokers turn away from such cigarettes because they lack “taste” or “flavor.” But researchers say that these cigarettes taste no different; they merely lack the kick that nicotine provides.

    Time, April 18, 1994, p. 61, and Journal of the National Cancer Institute, January 17, 1990, p. 89

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