PM USA FILES PROPOSED CORRECTIVE STATEMENTS UNDER PROTEST; ALTRIA “SUPPORTS” STATEMENTS, BUT DISTANCES ITSELF FROM VERDICT
October 18, 2006 1:36 am by Gene BorioPhilip Morris USA and its parent Altria filed an extraordinary pair of documents on Oct. 16, 2006.
PM laid out its proposed Corrective statements “as compelled by the final judgment and remedial order” of Judge Kessler, while insisting that “the corrective statements remedy imposed by the Court is not supported by the factual record and the law.”
The corrective statements address 5 issues:
“(a) the adverse health effects of smoking; (b) the addictiveness of smoking and nicotine; (c) the lack of any significant health benefit from smoking ‘low tar,’ ‘light,’ ‘ultra light,’ ‘mild,’ and ‘natural,’ cigarettes; (d) defendants’ manipulation of cigarette design and composition to ensure optimum nicotine delivery; and (e) the adverse health effects of exposure to secondhand smoke.”
PM demonstrates its expertise and attention to verbal detail in its proposal, an indication that all PM says is subject to the same expertise, and that all its communications are at least as verbally and psychologically savvy.
“PM USA’s proposed statements are deliberately short and to the point. They are designed to maximize the effectiveness of the communication by making it likely that consumers will read and understand them in the media the Court has specified”
The wordplay involved in PM’s’s filing is astonishing. PM claims to base many of its statements on various Surgeon General’s Reports and Monograph 13. Yet its statement on secondhand smoke hedges its bet in classic fashion, though PM claims the statement “reflects the conclusions of the 2006 Surgeon General’s Report.” The proposed statement reads:
” Public health officials have concluded that secondhand smoke from cigarettes causes disease, including lung cancer and heart disease, in non-smoking adults, as well as causes conditions in children such as asthma, respiratory infections, cough, wheeze, otitis media (middle ear infection) and Sudden Infant Death Syndrome.”
While PM argues that its statements much be kept short in order to best communicate their messages, PM insists on keeping an extra 6 words here: “Public health officials have concluded that.” The statement gives no indication of the Surgeon General’s conclusion that “the debate is over.”
On the same day, Altria filed a submission stating that,
“defendant Altria Group, Inc. hereby supports the corrective statements proposed by defendant Philip Morris USA, Inc”
Yet Altria continues to argue against Kessler’s verdict in a footnote which states,
“Altria is a holding company which does not manufacture, sell, or distribute cigarettes. For the reasons set forth in defendants’ post-trial briefs and post-trial proposed findings of fact, Altria submits that the record does not support a finding of RICO liability on the part of Altria, and establishes no basis for injunctive relief against Altria. In particular, there is no legal or factual basis for requiring Altria to make “corrective statements.” Nothing in this submission constitutes a waiver of these positions.”
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Texts follow of:
Philip Morris USA Proposed Corrective Statements, October 16, 2006
ALTRIA SUBMISSION REGARDING PROPOSED CORRECTIVE STATEMENTS, October 16, 2006
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Philip Morris USA Proposed Corrective Statements, October 16, 2006
**———————————————————
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA,
Plaintiff,
And
TOBACCO-FREE KIDS ACTION FUND,
et al.,
Plaintiff-Intervenors,
v.
PHILIP MORRIS USA INC. (f/k/a
PHILIP MORRIS INCORPORATED),
et al.,
Defendants.
Civil Action No. 99-CV-2496 (GK)
Next Scheduled Court Appearance: None
PHILIP MORRIS USA’S PROPOSED CORRECTIVE STATEMENTS AS COMPELLED BY THE FINAL JUDGMENT AND REMEDIAL ORDER
Philip Morris USA, Inc. (“PM USA”) makes this submission in response to this Court’s August 17, 2006 Final Judgment and Remedial Order (“Order”) compelling defendants to make “corrective statements” on five issues. Order II.B.5. The Order directs the parties to submit proposed corrective statements within 60 days. See Order II.B.5.1
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1 Notwithstanding that it is making this submission, PM USA reiterates, for reasons set forth in Joint Defendants’ Proposed Findings of Fact, and the Corrected Post Trial Brief of Joint Defendants, that the corrective statements remedy imposed by the Court is not supported by the factual record and the law. As such, PM USA has appealed, and both its appeal and its motion for a stay of the judgment pending appeal await resolution by the D.C. Circuit. Similarly, PM USA continues to object to the Court’s imposition of this remedy without holding an evidentiary hearing pursuant to United States v. Microsoft. 253 F.3d 34 (D.C. Cir. 2001). Nothing in this submission is intended to waive PM USA’s objections to the corrective statements remedy.
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I. PM USA’s Proposed Corrective Statements
The Court has directed the parties to submit proposed corrective communications on the following topics: “(a) the adverse health effects of smoking; (b) the addictiveness of smoking and nicotine; (c) the lack of any significant health benefit from smoking ‘low tar,’ ‘light,’ ‘ultra light,’ ‘mild,’ and ‘natural,’ cigarettes; (d) defendants’ manipulation of cigarette design and composition to ensure optimum nicotine delivery; and (e) the adverse health effects of exposure to secondhand smoke.” Order at II.B.5.
PM USA’s proposed statements are derived in substance from and accurately reflect the conclusions of public health authorities, particularly the Surgeon General reports. Relying on the conclusions of the consensus of public health authorities helps to ensure that the public receives a consistent message regarding the risks associated with smoking.
In addition, PM USA’s proposed statements are deliberately short and to the point. They are designed to maximize the effectiveness of the communication by making it likely that consumers will read and understand them in the media the Court has specified. As both Houses of Congress have recognized, in connection with cigarette health warnings, “cautionary statement(s) should be short and direct.” H.R. Rep. No. 89-449 at 4 (1965), Report on the Federal Cigarette Labeling and Advertising Act, June 8, 1965 (Exhibit A); S. Rep. No. 89-195 at 4 (1965), Report on the Cigarette Labeling Act, May 19, 1965 (Exhibit B). Long or wordy statements are less likely to be effective. Accordingly, PM USA’s proposed statements are short, succinct and easily understandable in the contexts in which they have been ordered to be presented.
For each corrective statement on which it offers a proposal, PM USA sets forth PM USA’s proposed language for the statement and identifies the public health authority from which the proposed content is derived.
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A. The Adverse Health Effects of Smoking
PM USA proposes the following corrective statement:
Cigarette smoking causes lung cancer, heart disease, emphysema, and other serious diseases in smokers. Smokers are far more likely to develop serious diseases, like lung cancer, than non-smokers. Smoking by pregnant women increases the risks for fetal injury, premature birth, and low birth weight. There is no safe cigarette.
PM USA’s proposed statement summarizes the conclusions of the 2004 Surgeon General’s Report, The Health Consequences of Smoking (“2004 Surgeon General’s Report”) (Exhibit C). The Surgeon General’s Report finds that “[t]he evidence is sufficient to infer a causal relationship between smoking” and the following diseases: “lung cancer, bladder cancer, larynx cancer, oral cavity cancer, stomach cancer, cervical cancer, esophageal cancer, kidney cancer, pancreatic cancer, cardiovascular diseases such as heart attacks, coronary heart disease, and atherosclerosis, pneumonia, chronic obstructive pulmonary diseases such as emphysema and chronic bronchitis, cerebrovascular diseases, peptic ulcers, aortic aneurysms, cataracts, low bone density in menopausal women, reduced fertility, problems with pregnancy such as premature rupture of the membranes, placenta previa, placental abruption, pre-term delivery and shortened gestation, fetal growth restriction and low birth weight, acute myeloid leukemia, respiratory effects in children, adolescents and adulthood and hip fractures.” See id. at 4-8.
Although derived directly from the Surgeon General’s statement, PM USA’s proposed statement does not list each and every one of the diseases set forth in the 2004 Surgeon General’s Report. Doing so would dilute the message by making it a laundry list that will be long, complex, and less understandable in the required media. Moreover, including such a list would make the statement far too long to include in the media specified by the Court. See infra Section II.
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B. The Addictiveness of Smoking and Nicotine
PM USA proposes the following corrective statement:
Cigarette smoking is addictive. The nicotine in cigarette smoke is addictive. It can be difficult to quit smoking, but this should not deter smokers who want to quit from trying to do so.
PM USA’s statement tracks the language of the 1988 Surgeon General’s Report, The Health Consequences of Smoking: Nicotine Addiction (Exhibit D) at 9, which concludes that “cigarettes and other forms of tobacco are addicting.” PM USA’s proposed corrective statement even more forcefully emphasizes the addictive nature of smoking and nicotine. PM USA has added an additional statement to help ensure that its warning does not have the unintentional consequence of deterring smokers from attempting to quit.
C. The Lack Of Any Significant Health Benefit From Smoking “Low Tar,” “Light,” “Ultra light,” “Mild,” and “Natural,” Cigarettes
PM USA proposes the following corrective statement:
There is no safe cigarette. “Low tar,” “light,” “ultra light,” “medium,” and “mild” brands are no exception. You should not assume that these brands are safe or safer than full flavor brands or that smoking these brands will help you quit. If you are concerned about the health risks of smoking, you should quit.
PM USA’s proposed statement incorporates the conclusions embodied in the 2004 Surgeon General’s Report, NCI Monograph 13: Risks Associated with Smoking Cigarettes with Low Tar Machine-Measured Yields of Tar and Nicotine (2001) (“Monograph 13”) (Exhibit E), and the FTC Consumer Alert, Up In Smoke: The Truth About Tar and Nicotine Ratings, (May 2000) (“2000 FTC Consumer Alert”) (Exhibit F). Specifically, PM USA’s proposed statement is based on the following conclusions of the public health community:
• “There is no convincing evidence that changes in cigarette design between 1950 and the mid 1980s have resulted in an important decrease in the disease burden caused by cigarette use either for smokers as a group or for the whole population.” NCI Monograph 13 at 146.
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• “Widespread adoption of lower yield cigarettes by smokers in the United States has not prevented the sustained increase in lung cancer among older smokers.” Id.
• “Smoking ‘low tar’ or ‘light’ cigarettes does not eliminate the health risks of smoking.” 2000 FTC Consumer Alert.
• “Smoking cigarettes with lower machine-measured yields of tar and nicotine provides no clear benefit to health.” 2004 Surgeon General’s Report at 25.
• “If you’re concerned about the health risks of smoking, stop smoking.” 2000 FTC Consumer Alert.
• “There’s no such thing as a safe smoke.” Id.
Additionally, because PM USA does not use the “natural” descriptor, but does use the “medium” descriptor, PM USA proposes including “medium” but deleting “natural” from the list of descriptors.
D. Exposure to Environmental Tobacco Smoke
PM USA proposes the following corrective statement:
Public health officials have concluded that secondhand smoke from cigarettes causes disease, including lung cancer and heart disease, in non-smoking adults, as well as causes conditions in children such as asthma, respiratory infections, cough, wheeze, otitis media (middle ear infection) and Sudden Infant Death Syndrome.
PM USA’s proposed statement reflects the conclusions of the 2006 Surgeon General’s Report, The Health Consequences of Involuntary Exposure to Tobacco Smoke (Exhibit G) — the most recent authoritative statement regarding the adverse consequences of exposure to environmental tobacco smoke. This report concludes that:
• “The evidence is sufficient to infer a causal relationship between secondhand smoke exposure and lung cancer,” id. at 15;
• “The evidence is sufficient to infer a causal relationship between exposure to secondhand smoke and increased risks of coronary heart diseases, morbidity and mortality among both men and women,” id.;
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• “The evidence is sufficient to infer a causal relationship between parental smoking and middle ear disease in children, including acute and recurring otitis media and chronic middle ear effusion,” id. at 14;
• “The evidence is sufficient to infer a causal relationship between parental smoking and ever having asthma among children of school age” id.;
• “The evidence is sufficient to infer a causal relationship between exposure to secondhand smoke and sudden infant death syndrome” id. at 13;
• “The scientific evidence indicates that there is no risk-free levels of exposure to secondhand smoke,” id. at 11.
E. Statement Regarding Defendants’ Purported Manipulation of Cigarette Design
The Court has directed defendants to submit a statement indicating that they manipulate the design of cigarettes to ensure optimum nicotine delivery. As reflected in Joint Defendants’ Proposed Findings of Fact, which PM USA incorporates here by reference, PM USA believes that the Court’s findings underlying this topic are factually incorrect. Accordingly, PM USA cannot submit a truthful “corrective” statement that completely meets the Court’s apparent objective, particularly if the Court is requiring the statement to appear as an admission of PM USA rather than as a statement attributed to the Court’s findings. We therefore urge the Court not to require a corrective statement on this issue until PM USA’s appeal is decided. Compelling PM USA to make such a statement now could cause irreparable consequences if the statement is in the interim attributed to PM USA by the public, the press, and other litigants. See Defendants’ Emergency Motion To Stay The Final Judgment And Remedial Order Pending Appeal.2
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2 The Corrective Statements are all subject to strict scrutiny, as are most of the limitations on speech embodied in other aspects of the Court’s August 17 Order. See Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 66-67 (1983); Riley v. Nat’l Fed’n of the Blind of N.C., 487 U.S. 781, 795-97 (1988); United States v. United Foods, 533 U.S. 405, 409 (2001).
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Moreover, at a minimum, if the Court requires PM USA to make a statement with which it disagrees, it should allow it to disassociate itself from the assertion by, for example, attributing the statement to the Court. See United States v. Nat’l Soc. of Professional Engineers, 555 F.2d 978, 984 (D.C. Cir. 1977) (where court strikes professional society’s rule that competitive bidding was unethical, and requires the society to state that the rule has been judicially invalidated on antitrust grounds, it was improper for a district court to require the society to state that “in its view” competitive bidding was ethical); Planned Parenthood Minnesota v. Rounds, 375 F.Supp.2d 881, 886-87 (D.S.D. 2005) (striking down legislation requiring compelled speech where no opportunity for speaker to disassociate him or herself from content of speech); see also Prune Yard Shopping Center v. Robins, 447 U.S. 74 (1980) (upholding law requiring shopping mall owner to permit petitioning on its property because no risk existed that the speech would be attributed to property owner).
In the alternative, if the Court nevertheless adheres to its requirement that defendants make corrective statements on this topic, PM USA proposes the following:
Cigarettes deliver tar and nicotine. Well known design features affect the delivery of tar and nicotine. The amount of tar and nicotine you inhale will vary, depending upon how you smoke. Generally speaking, the more intensely you smoke a cigarette, the more tar and nicotine you will inhale.
This statement, which is derived from Monograph 13, see NCI Monograph 13 at 34, 60, and the 2000 FTC Consumer Alert, both reflects what PM USA believes to be true and responds to the Court’s directive to submit a corrective statement on the “[d]efendants’ manipulation of cigarette design and composition to ensure optimum nicotine delivery.”
II. Dissemination of the Corrective Statements:
The Court should consider the length of the Corrective Statements as it prepares to issue its Order. The length of the ordered Corrective Statement will directly impact both their impact
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on observers and PM USA’s ability to comply with the requirements of the Court’s August 17 Order.
First, as the Court considers the content of corrective communications it must consider the effectiveness of the communication in terms of reaching consumers. Congress has long recognized that overly long health warnings may not be effective. Indeed, to be effective, smoking and health “cautionary statement(s) should be short and direct.” H.R. Rep. No. 89-449 at 4 (1965); Report on the Federal Cigarette Labeling and Advertising Act, June 8, 1965; S. Rep. No. 89-195 at 4 (1965), Report on the Cigarette Labeling Act, May 19, 1965. See also Comprehensive Smoking Education Act of 1981: Hearing on S. 1929 Before the S. Comm. On Commerce, Science, and Transportation, 97th Cong. 80 (1982) (statement of Charles Crenshaw Sharp, President, Charles Sharp & Associates) (“To be easily understood, a health warning also must be short and concise. Longer health warnings containing numerous facts are more difficult to comprehend and less likely to be read.”) (Exhibit H); id at 3 (statement of Senator Ford) (“Advertisers follow a simple creed . . . ‘Keep it simple, keep it clear . . .’” ).
The statements previously submitted by the Department of Justice are long, wordy, and on their face time consuming to read in the manners prescribed by the Court. For example, the Justice Department’s previous submission on the adverse health effects associated with smoking contained 117 words and listed dozens of potential diseases that may be contracted as a result of smoking. By contrast, PM USA proposes short, pithy statements that are more likely to be read, understood and remembered in the contexts of the required media vehicles.
Second, each form of media specified by the Court carries with it some limitations regarding space. The most space constrained media is the television commercial. A 15-second commercial cannot accommodate an unlimited stream of words. For example, none of the
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Justice Department’s previously submitted statements on adverse health effects could be read and scrolled comprehensibly in a 15-second television commercial. By contrast, each of the statements submitted by PM USA constitutes just about the maximum that can be communicated in full across each of the media identified by the Court.
III. Compliance with the Court’s Deadlines
The Court’s corrective statements remedy imposes extensive obligations on defendants. As explained in the August 31, 2006 Declaration of David Beran, which PM USA filed as an exhibit to Certain Defendants’ Motion For Stay Pending Appeal, and which was not disputed by the government, implementation of the corrective statements in accordance with the Court’s schedule presents significant logistical challenges. See August 31 Declaration of David Beran, ¶¶ 24-37. Based on further investigation, it now appears that because of the logistics required, PM USA would, at a minimum, need to know the content of the communications by November 9, 2006 in order to have a realistic chance of meeting the Court’s February 2007 deadline for shipment of onserts for retail distribution. October 16, 2006 Declaration of David Beran ¶¶ 5-6 (Exhibit I). Even then, PM USA will only be able to meet the Court-ordered deadline if it can execute a highly accelerated production and implementation schedule without any interruptions or delays. October 16 Beran Decl.¶ 6. Accordingly, PM USA respectfully requests that the Court approve the final corrective statements by November 9, 2006, or, in the alternative, modify the deadlines imposed in the Order to adjust each of the deadlines by at least as much time beyond November 9, 2006 as the Court needs to resolve the issue of the content of the Corrective Statements.
CONCLUSION
WHEREFORE, Philip Morris USA respectfully requests that the Court adopt its proposed corrective statements.
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DATED: October 16, 2006 Respectfully submitted,
/s/ Matthew A. Campbell for _______________
Timothy M. Broas (D.C. Bar No. 391145)
WINSTON & STRAWN LLP
1700 K Street, N.W.
Washington, D.C. 20006-3817
Telephone: (202) 282-5000
Fax: (202) 282-5100
Dan K. Webb
Thomas J. Frederick
WINSTON & STRAWN LLP
35 West Wacker Drive
Chicago, Illinois 60601-9703
Telephone: (312) 558-5600
Fax: (312) 558-5700
Theodore V. Wells, Jr. (D.C. Bar No.
468934)
James L. Brochin (D.C. Bar No. 455456)
PAUL, WEISS, RIFKIND, WHARTON &
GARRISON LLP
1285 Avenue of the Americas
New York, New York 10019-6064
Telephone: (212) 373-3000
Fax: (212) 757-3990
Attorneys for Defendant Philip Morris USA Inc.
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ALTRIA SUBMISSION REGARDING PROPOSED CORRECTIVE STATEMENTS, October 16, 2006
**———————————————————
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA,
Plaintiff,
And
TOBACCO-FREE KIDS ACTION FUND,
et al.,
Plaintiff-Intervenors,
v.
PHILIP MORRIS USA INC. (f/k/a
PHILIP MORRIS INCORPORATED),
et al.,
Defendants.
Civil Action No. 99-CV-2496 (GK)
Next Scheduled Court Appearance: None
ALTRIA GROUP, INC.’S SUBMISSION REGARDING PROPOSED CORRECTIVE STATEMENTS
This Court’s Final Judgment and Remedial Order of August 17, 2006 ordered defendants to publish corrective statements on various issues, and to submit proposed statements within 60 days. Pursuant to the Court’s Order, defendant Altria Group, Inc. hereby supports the corrective statements proposed by defendant Philip Morris USA, Inc., for the reasons set forth in the submission of Philip Morris USA.1
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1 Altria is a holding company which does not manufacture, sell, or distribute cigarettes. For the reasons set forth in defendants’ post-trial briefs and post-trial proposed findings of fact, Altria submits that the record does not support a finding of RICO liability on the part of Altria, and establishes no basis for injunctive relief against Altria. In particular, there is no legal or factual basis for requiring Altria to make “corrective statements.” Nothing in this submission constitutes a waiver of these positions.
2
Dated: October 16, 2006 Respectfully submitted,
/s/ Matthew A. Campbell for _________
Timothy M. Broas (D.C. Bar No. 391145)
WINSTON & STRAWN LLP
1700 K Street, N.W.
Washington, D.C. 20006-3817
Telephone: (202) 282-5000
Fax: (202) 282-5100
Dan K. Webb
Thomas J. Frederick
WINSTON & STRAWN LLP
35 West Wacker Drive
Chicago, Illinois 60601-9703
Telephone: (312) 558-5600
Fax: (312) 558-5700
Guy Miller Struve (D.C. Bar No. 388733)
DAVIS POLK & WARDWELL
450 Lexington Avenue
New York, NY 10017
Telephone: (212) 450-4192
Fax: (212) 450-3192
Theodore V. Wells, Jr. (D.C. Bar No.
468934)
James L. Brochin (D.C. Bar No. 455456)
PAUL, WEISS, RIFKIND, WHARTON &
GARRISON LLP
1285 Avenue of the Americas
New York, New York 10019-6064
Telephone: (212) 373-3000
Fax: (212) 757-3990
Counsel for Defendant/Appellant
Altria Group, Inc.
October 18th, 2006 at 10:01 am
“When an industry has been lying for more than half a century, then announces it is going to tell the truth but only tells a fraction of the truth, the impact can be as bad as or worse than the original lie.”
http://www.acsh.org/healthissues/newsID.461/healthissue_detail.asp
“Has Philip Morris Finally Come Clean?”
Elizabeth Whelan, ACSH
November 22, 2002
October 18th, 2006 at 10:24 am
A look at the soft language.
“Smokers are far more likely to develop serious diseases” not the plain English “smokers develop far more serious diseases”. It’s just “more likely to”, so soft — and not even technically correct. You can only say an individual smoker is “more likely to”; as a group, there’s no “likely” about it, smokers get more disease, period. Note also how the language directs attention away from the product, toward the customer. It doesn’t say “tobacco product causes serious diseases”. No, it’s “smoking” and “smokers” that get highlighted. This fits nicely into this industry’s long history of blaming the customer.
Similarly “smoking by pregnant women increases the risks”. It’s just risks. So soft. And again technically incorrect: the product only can be said to increase risk for a pregant woman. When we’re talking about women, plural, the group of women exposed to the product, there’s no risk, it’s a sure thing: there will be more sick and dead babies. That’s what the product does. Note how the soft language avoids mentioning this reality.
The language on addictiveness is a beautiful case study in pretending to warn then sabotaging the warning. Oh, it’s addictive, but people can quit. As PM knows this undermines the definition, and softpedalsl the reality, of nicotine addiction. Yes, it’s addictive, but if you can quit, how much does that mean? Also note again how the language moves focus away from product: it’s “cigarette smoking” that’s addictive, not product, not cigarettes, not PM’s most profitable product. Finally, left entirely unmentioned is PM’s engineering of product for addiction. Somehow that’s not relevant.
Then there’s the language on “light”, another piece of work. Not a single word or phrase implies that these or any other cigarette are harmful in any way. It’s all about “safer” and “concerns of risks”. But it does warn that light cigarettes are just as harmful as any other? Nope! It says “you should not assume” otherwise. It never ONCE says light cigarettes are MORE, LESS, or JUST AS harmful as any other cigarette. Some warning!
Not surprisingly, the language on secondhand smoke and cigarette engineering are even farther from the truth.
October 19th, 2006 at 7:15 pm
A look at PM’s statements on secondhand smoke and cigarette engineering.
The secondhand smoke language is perhaps the most amazing piece of wordsmithing in the entire document.
For example: is there a safe level of secondhand smoke? Can ventilation solve the problem? What does PM’s statement say about that? Take a look: PM’s language is utterly silent on that; not one word. Yet in the very same document PM claims that its statement conveys the findings of the 2006 Surgeon General’s report — including the finding that there is no safe level of secondhand smoke.
For another example, Gene’s point: “public health officials have concluded”. The old attribution game: stuffy officials wag their fingers. Not the manufacturer, who knows the product better than anybody. Nor just omit the attribution altogether, it’s not needed, and hey, we’re trying to be short and to the point, so here: this is what the product does. Period. No, gotta add “public health officials have concluded”. Of course that implies that the debate is still ongoing, others may disagree, and you can’t run your life on what those nanny officious officials say.
Then there’s “conditions” in children. Not disease. No sick children here! Just a few “conditions”. Apparently SIDS is a “condition”. Uh, like a dead baby condition? Similarly when discussing effects adults, where disease is mentioned, death is not. Causes disease. Nobody ever dies from it.
And talk about sanitizing: “non-smoking adults”. That’s who gets the disease and death. Could it be anyone we know? Have we ever seen them? The plain fact is, secondhand smoke sickens and kills the people nearest the customer. These are co-workers, husbands, wives, Moms, Dads, children, the waiter who brought you your dinner today, the bartender who got you your drink. That’s the reality. In contrast, PM’s language is bloodless, soft, faint, distant: “non-smoking adults”.
Then there’s the circuitous sentence structure. One big-ass sentence, 44 words long, compound-complex structure, who did what now? They say what? Subjects and verbs float away and re-appear in the mist. Oh yeah, we want to be brief. Short and to the point. That’s not what the readability score says (simple.wikipedia.org/wiki…)
But perhaps the most notable aspect is what does NOT get said. What goes unmentioned. For instance, how many deaths from secondhand smoke? It is like, 1? 100? 1000? What? How big a problem are we talking about here?
The plain fact is that 30,000 to 50,000 Americans die from secondhand smoke every year. Many more get horrible disabling diseases from it, diseases you do not get better from. These facts go entirely unmentioned. Nothing in PM’s statement give any idea of the scale of disease and death that the product gives the people closest to the customer.
Now some might say that PM’s statement is stronger than its past statements on secondhand smoke. That’s a mistake. Nowhere does PM say it agrees with “public heatlh officials”. Nowhere does it say that anyone ever died from secondhand smoke. Nowhere does it say that ventilation doesn’t solve the problem. All the while pretending that it has accurately passed along the information from the Surgeon General’s report.
PM is a grandmaster of the non-disclosure disclosure. The statement that looks strong and factual but is actually soft and vague. The statement that looks revealing yet actually reveals little — and often “cleverly muddies the waters further” as ACSH puts it:
http://www.acsh.org/healthissues/newsID.461/healthissue_detail.asp
Turning to PM’s language on cigarette design, interestingly enough, it’s less amazing. Less amazing because it doesn’t do as clever a job at obfuscating. No, it just outright denies.
For instance, “well known design features” is simply ludicrous. Not one smoker in a thousand would know about vent holes designed to be blocked by the smoker’s fingers, about ammonia smoke chemistry, about neurochemical pathways of nicotine in the brain, about hybrid high-nicotine strains of tobacco.
That stuff is all “well known” by PM R&D.
It’s not “well known” by the customer, by the public — by anyone outside the industry, really.
And of course that’s no accident. There’s no greater hypocrisy than this industry’s defense of advertising: “we just want to provide truthful information to our customers!” Yet it never provides any information on how it engineers the product for addiction, as a highly optimized drug delivery device. You’d think the customers might want to know about that.
In fact, these “well known design features” are sophisticated engineering that this industry never mentions in public. In fact it goes to great lengths to harrass and intimidate anyone who does talk about cigarette design:
http://www.jeffreywigand.com/insider/
Yet somehow now PM pretends these are “well known design features” that it need say no more about. Yeah, everyone knows that. Right.
PM then proceeds to say almost nothing and skirt entire areas it knows are highly relevant
For instance, “the amount of nicotine you will inhale” entirely glosses over the amount of nicotine that gets to the brain. That’s what ammonia pH boosting is about. PM knows all about it. It’s not “well known” to most people. It’s entirely unmentioned in PM’s statement. Instead PM pretends it doesn’t matter, doesn’t even exist.
So I wouldn’t call that clever obfuscation. Just denial. Denial by omission. It’s like never mentioning the insurance money when discussing the suspicious fire. You didn’t think that was relevant? Oh right; you’re just pretending it wasn’t. In plain English: denial.
One particularly clever (or savage, depending on your point of view) piece of wordsmithing: PM blames the customer. “The amount of tar and nicotine you inhale will vary, depending upon how you smoke.The more intensely you smoke a cigarette, the more tar and nicotine you will inhale.”
And note: this is the section devoted to cigarette design! This is the section on what the manufacturers have done to manipulate cigarette design. Manufacturer behavior. Yet PM devotes two-thirds of its statement in this section to customer behavior — and never gets around to manufacturer behavior at all!
No, it’s about how the customer uses the product. It’s the customer’s fault. You inhale too much. What, the product wasn’t designed to be inhaled?
So while this section is less clever in its obfuscating, more notable for stonewalling, it is clever in shifting the subject. Gosh, we can’t say how you inhale!
What the statement never mentions: in PM’s labs it knows exactly how you inhale. And how dozens of cigarette design features, well known to PM, will affect every puff.
October 19th, 2006 at 10:53 pm
Jon as usual provides an insightful analysis of these remarkable filings–something no one else, apparently (except Judge Kessler), is doing. No AP, no Reuters, nothing. This strikes me as incredibly odd.
Especially since the correcives seem couched in nearly the same language as the statements for which the defendants were taken to task, the very statements which Judge Kessler cited to show the industry was continuing to misinform. For the Defendants to seriously present these as viable correctives seems to me, uh, not to put too fine a point on it–brazen.
It would be interesting to see a direct comparison between the Defendants’ “corrective” statements here and some of the statements Judge Kessler found deceptive in her ruling.
There is much in the DOJ ruling to examine in this regard; here I excerpt just two sections of Judge Kessler’s findings which bear on the industry’s statements: one on the health effects of primary smoking and one on the health effects of secondhand smoke.
Text follows from:
http://coop.dcd.uscourts.gov/99-2496-082006a.pdf
**———————————————————
[ON PRIMARY SMOKING:]
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810. Finally, on October 13, 1999, when Philip Morris launched a corporate website, it changed its public position on smoking and health issues. The website stated: “There is an
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overwhelming medical and scientific consensus that cigarette smoking causes lung cancer, heart disease, emphysema, and other serious disease in smokers.” Steve Parrish, Senior Vice President of Corporate Affairs for Altria Group, acknowledged that the overwhelming scientific consensus referenced in the October 1999 statement had existed for decades. Parrish further conceded that Philip Morris’s refusal to acknowledge prior to October 1999 that smoking caused disease had damaged the company’s credibility because there was no support for Philip Morris’s view outside of the tobacco industry. 2085240087-0089 at 0087 (US 45673); Parrish WD, 9:20-12:3, 15:5-10; Keane WD, 24:21-25:28:8.
811. Although Philip Morris recognized the “overwhelming medical and scientific consensus,” regarding the causation of disease by cigarette smoking in 1999, it did not state its agreement with that consensus until October 2000. Keane WD, 27:11-28:11. Parrish acknowledged that Philip Morris changed its position on causation in 2000 because of criticism from the public health community, and that Philip Morris’s decision to state its agreement with the “overwhelming medical and scientific consensus” was not based on any new scientific evidence. The scientific basis for the “overwhelming medical and scientific consensus” had existed for decades prior to Philip Morris’s decision to state its agreement with it. Parrish WD, 19:13-21:21.
812. Although Philip Morris is free to voluntarily change the information it includes on its cigarette warning labels, it has chosen not to change those labels even though in October 2000, the company changed its public position to admit that smoking causes disease and is addictive. Bible PD, United States v. Philip Morris, 8/22/02, 112:12-113:17.
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813. Philip Morris has never told its customers on its cigarette packaging or in onserts that it agrees that smoking causes cancer and other diseases in smokers. Its packages merely direct smokers to its website address. Keane WD, 35:10-22.
814. Speaking on behalf of RJR, Chairman Andrew Schindler, who received between $44 and $45 million in compensation in 2004, has refused to admit that smoking causes disease, as the following colloquies demonstrate: (1) When asked, “you won’t say sitting here today that cigarette smoking causes disease, right?,” he responded: “Well, my testimony and what’s on our Website today is cigarette smoking [has] inherent health risks [and] may contribute to causing certain diseases in some people.” Schindler TT, 1/24/05, 10811:11-19; (2) when asked again, “So you say it’s possible, it’s likely, but you don’t say it does, do I have that right?,” Mr. Schindler admitted, “Yes.” Id. at 10812:20-22; (3) RJR’s website, like its Chairman, does not admit that smoking is a cause of disease. Instead, it states: “We produce a product that has significant and inherent health risks for a number of serious diseases and may contribute to causing these diseases in some individuals.” Id. at 10814:11-15.
815. As late as 2004, Lorillard CEO Martin Orlowsky refused to admit the full extent of smoking’s harm. He was specifically asked: “Why hasn’t Lorillard specifically stated publicly that smoking causes any diseases other than smoking [sic] emphysema, COPD or heart disease?” He responded:
We have — in certain instances, we do not know if in fact the
evidence, the scientific evidence is such that it warrants saying it does
cause. However, Lorillard’s longstanding position, as long as I’ve
been with the company, is that certainly smoking can, and is a risk
factor for those diseases.
Orlowsky TT, 10/13/04, 2303:7-15.
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816. Arthur Stevens, former Senior Vice President and General Counsel of Lorillard responded in 2000 to the question of whether smoking causes disease:
I am aware that the company and others are of the position and the
view, and I embrace that, that cigarette smoking is a risk factor for
disease and I have no argument with the public health and the medical
and other authorities taking that position.
Stevens WD, 47:1-11.
817. The risk factor language was not and is not the position of the scientific community and Stevens knew that. When questioned regarding the distinction, Stevens said: “Q: Were you aware, Mr. Stevens, that the risk factor formulation you stated was not the position of public health authorities? A: Yes I was.” Stevens WD, 47:12-14.
818. Lorillard continues to issue public statements on smoking and health issues through PR Newswire. Press releases are sent by interstate wire transmission by PR Newswire, which in turn sends the releases out to news media so that Lorillard can “get the message out.” Milstein TT, 1/7/05, 9261:8-18, 9271:7-17.
819. Press releases are also kept on Lorillard’s website, where they can be accessed and reviewed by the public. Id. at 9272:12-20.
820. Lorillard General Counsel Ronald Milstein admitted that the content of recent Lorillard press releases on smoking and health issues, including addiction and the health effects of exposure to ETS, is similar to statements that Defendants have made for decades. Id. at 9264:11-24, 9266:6-16, 9277:23-9278:12; TLT0961610-1610 (US 86693); USX5710001-0002 (US 89303); USX5710005-0006 (US 89305).
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821. Two years after the effective date of the Master Settlement Agreement, in 2000, B&W told visitors to its website: “We know of no way to verify that smoking is a cause of any particular person’s adverse health or why smoking may have adverse health effects on some people and not others.” (no bates) (JD 012645).
7. Conclusions
822. Defendants have been aware since the late 1950s of substantial evidence demonstrating that smoking causes significant adverse health effects, in particular, lung cancer. The evidence was presented by practicing physicians, such as Michael DeBakey, Alton Oschner, and Richard Overholt, by academic scientists, such as Evarts Graham and Ernst Wynder, and by government officials such as Surgeon General Leroy Burney in his 1959 JAMA article.
823. By 1964, when the Surgeon General of the United States, Luther Terry, issued his ground-breaking Report considering some 7,000 scientific articles on the relationship between smoking and health, there could no longer be any question that there was a consensus in the American scientific community “that cigarette smoking contributes substantially to mortality from certain specific diseases and to the overall death rate,” that “[c]igarette] smoking is associated with a 70 percent increase in the age-specific death rates of males,” that “[c]igarette smoking is causally related to lung cancer in men,” and that the “data for women, though less extensive, point in the same direction.” In 1968, the Surgeon General concluded that “cigarette smoking can contribute to the development of cardiovascular disease and particularly to death from coronary heart disease.”
824. From at least 1953 until at least 2000, each and every one of these Defendants repeatedly, consistently, vigorously — and falsely — denied the existence of any adverse health effects from smoking. Moreover, they mounted a coordinated, well-financed, sophisticated public relations
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campaign to attack and distort the scientific evidence demonstrating the relationship between smoking and disease, claiming that the link between the two was still an “open question.” Finally, in doing so, they ignored the massive documentation in their internal corporate files from their own scientists, executives, and public relations people that, as Philip Morris’s Vice President of Research and Development, Helmut Wakeham, admitted, there was “little basis for disputing the findings [of the 1964 Surgeon General’s Report] at this time.”
825. Indeed, as far back as 1968, William Kloepfer, Vice President of Public Relations for the Tobacco Institute recognized that “[o]ur basic position in the cigarette controversy is subject to the charge, and may be subject to a finding, that we are making false or misleading statements to promote the sale of cigarettes.” Mr. Kloepfer was both correct and prescient.
826. For more than forty years after issuance of the Frank Statement in 1954, and for more than thirty years after issuance of the Surgeon General’s first Report on smoking and health, Defendants maintained their position denying the causal relationship between smoking and disease.
Finally, in 1999, Philip Morris launched a corporate website acknowledging the “overwhelming medical and scientific consensus that cigarette smoking causes lung cancer, heart disease, emphysema, and other serious disease in smokers.” Despite this acknowledgment of the “overwhelming medical and scientific consensus,” Philip Morris could not bring itself to clearly state its agreement with that consensus until October 2000. Philip Morris still does not include the information on its cigarette packaging that it agrees that smoking causes cancer and other diseases in smokers.
827. Neither RJR, Lorillard, nor B&W, have openly admitted that smoking causes cancer. Indeed, in 2000, two years after the effective date of the Master Settlement Agreement, B&W was
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putting the following message on its website: “We know of no way to verify that smoking is a cause of any particular person’s adverse health or why smoking may have adverse health effects on some people and not others.”
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[ON SECONDHAND SMOKE:]
**———————————————————
8. Defendants Continue to Obscure the Fact that ETS is Hazardous to Non Smokers
a. Websites and Other Public Statements
3829. In this litigation, Defendants have denied that ETS causes disease in nonsmokers. USX6390001-0400 at 0045-0046 (US 89555) (BATCo); USX6390001-0400 at 0078-0079 (US 89555) (B&W); USX6390001-0400 at 0147-0148 (US 89555) (Lorillard); USX6390001-0400 at 0194-0195 (US 89555) (PM); USX6390001-0400 at 0272, 0274-0275 (US 89555) (RJR).
3830. Reynolds continues to publicly and directly deny that secondhand smoke causes diseases and other adverse health effects in nonsmokers. Reynolds’s position on its website is that it believes “that there are still legitimate scientific questions concerning the reported risks of secondhand smoke.” Reynolds’s website further states:
Considering all of the evidence, in our opinion, it seems unlikely that
secondhand smoke presents any significant harm to otherwise healthy
nonsmoking adults at the very low concentrations commonly
encountered in their homes, offices and other places where smoking
is allowed. We recognize that exposure to high concentrations of
secondhand smoke may cause temporary irritation, such as teary eyes,
and even coughs and wheezing in some adults. In addition, there is
evidence that secondhand smoke, like other airborne irritants, or
allergens such as pollen and dust may trigger attacks in asthmatics.
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(US 92012). Mary Ward, an in-house attorney for Reynolds until 2004, testified that the Reynolds position on passive smoking has not changed since she joined the company in 1985, with the exception of admitting that ETS “may trigger attacks in asthmatics.” Ward TT, 11/4/04, 5076:9- 5077:22.
3831. Reynolds corporate position on ETS and children is that “parents and others should minimize the exposure of children and young children to tobacco smoke and other airborne irritants.” (US 92012).
3832. Lorillard also continues to dispute publicly and directly disagree with the scientific consensus. On October 14, 2003, Lorillard issued a press release announcing a favorable verdict in the Miami case of a former flight attendant who alleged her chronic sinusitis and bronchitis were caused by ETS exposure over 27 years of working for airlines. After stating the trial result and providing a summary of the allegations, the press release stated: “Jurors are increasingly seeing through the transparent body of evidence in these types of cases, and we will continue our vigorous defense against any and all such future claims.” USX5710001 (US 89303). The press release was picked up and run in the Los Angeles Times the next day. USX5710005 (US 89305).
3833. Lorillard general counsel Ron Milstein testified that his company has never admitted in any forum that ETS exposure causes disease, and that the October 2003 press release was in line with the company’s position that ETS is not a proven health hazard. Milstein TT, 1/7/05, 9263:8- 9264:24. Lorillard’s current website does not admit that ETS causes disease in nonsmokers. Instead Lorillard directs consumers to the findings of public health authorities on ETS.
3834. B&W also continues to publicly deny that secondhand smoke causes diseases and other adverse health effects in nonsmokers. The company’s 2003 website stated: “It is, therefore, our
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view that the scientific evidence is not sufficient to establish that environmental tobacco smoke is a cause of lung cancer, heart disease, or other chronic diseases.” TLT0390003-0003 (US 76761). In 2004, the B&W public corporate position was revised to state its disagreement in slightly different terms: “In our opinion and in the opinion of others, however, there are legitimate scientific questions concerning the extent of the chronic health risks of ETS.” USX5420009 (US 89165); Ivey TT, 11/16/04, 6082:23-6083:14.
3835. BATCo continues to publicly dispute that secondhand smoke causes diseases and other adverse health effects in nonsmokers. BATCo also denies that passive smoke is a health hazard to adults or children. On its website, BATCo states that ETS can be “annoying,” but denies that it presents any risk:
We believe, however, the claim that ETS exposure has been shown
to be a cause of chronic disease is not supported by the science that
has developed over the last 20 years or so. In our view, it has not
been established that ETS exposure genuinely increases the risk of
nonsmokers developing lung cancer, heart disease, or chronic
obstructive pulmonary disease.
ARG0412302-2303 (US 86747); see also ARU6220813-0814 (US 86743).
3836. BATCo’s website also claims that the 1998 WHO/IARC study, which reported a increased relative risk of lung cancer of 16% for spousal exposure and 17% for workplace exposure, “found no meaningful increase in lung cancer risk.” BATCo summarizes the 2003 Enstrom study results, but fails to state that the study was funded and managed by the tobacco industry through CIAR and Philip Morris. ARG0412302-2303 (US 86747).
3837. BATCo has denied ETS-related health risks in other recent public statements. According to a March 1998 news article, BAT Chairman Martin Broughton was asked if he stood
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by the company’s assertion that passive smoking is not a health risk. Broughton’s response was: “There is virtually no evidence at all to the contrary.” ARU6532231-2233 at 2232 (US 86878).
3838. In 2002, BATCo published a document titled “British American Tobacco Social Report 2001/2002.” In this report, BATCo asserted:
There is also a debate about Environmental Tobacco Smoke (ETS),
also known as passive smoking. Some say it poses health risks, and
others, including ourselves, say there is no convincing evidence that
ETS is a cause of chronic diseases such as lung cancer.
TLT0231830-TLT0231910 at 1844 (US 76316).
3839. When Philip Morris Companies originally established the Philip Morris website in October 1999, its public position on passive smoking was that while “many scientists and regulators have concluded that ETS poses a health risk to nonsmokers,” Philip Morris did not agree with these conclusions. (no bates) (US 92056).
3840. In summer 2001, Philip Morris revised its position on ETS. According to a June 11, 2001 memorandum from Paula Desel to Raymond Lau and others, and copied to Ellen Merlo, Chuck Wall, Denise Keane, Mark Berlind, and others, Desel attached a draft revised ETS position for the Philip Morris website. 2083609049-9049 (2083609050-9056 (withheld as privileged)) (US 92058).
3841. The draft was forwarded to Roger Walk, a Philip Morris scientist in Europe (and INBIFO Scientific Adviser), who forwarded his comments to Raymond Lau. According to an undated Philip Morris document, a Philip Morris employee reviewed Walk’s and Lau’s comments, then responded to Desel with the following revision to the paragraph on lung cancer and heart disease:
The conclusions reached by governmental authorities and the public
health community with respect to lung cancer and heart disease in
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non-smoking adults are based on a large number of scientific studies
that have investigated the association of reported ETS exposure with
these health end points. These studies have shown a small, but
generally consistent, increase in the relative risk of contracting these
diseases for non-smokers reportedly exposed to ETS.
2085126542-6544 at 6542 (US 92059).
3842. A later draft of the Philip Morris revised position on passive smoking, marked “Confidential” and dated August 6, 2001, is titled “Our Policy and Position on Secondhand Tobacco Smoke.” This iteration of the company’s position acknowledged and agreed with the scientific consensus that passive smoking can cause lung cancer and other diseases:
We agree with [accept] the consensus among governmental
authorities and the public health community that secondhand smoke
(also known as environmental tobacco smoke or ETS) can cause or
increase the risk of diseases — including lung cancer and heart disease
– in nonsmoking adults, as well as conditions in children such as
asthma, respiratory infections and Sudden Infant Death Syndrome.
2085126539-6541 at 6539 (US 92057).
3843. The August 6, 2001 draft Philip Morris position also stated that, “Given the health effects of secondhand smoke, we believe that legislatures should adopt meaningful and reasonable public smoking restrictions, considering all the factors and interests involved.” 2085126539-6541 at 6539 (US 92057).
3844. From 1999-2001, the Philip Morris website publicly stated its disagreement with the scientific consensus as well:
Many scientists and regulators have concluded that ETS poses a
health risk to nonsmokers. Even though we do not agree with many
of their conclusions, below we have provided some links so you can
access some of their views.
(US 92056 at 2); Parrish TT, 1/25/05, 11080:23-11082:14.
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3845. While this case was pending, Philip Morris revised its position on ETS to delete its disagreement with the conclusions of “scientists and regulators.” Philip Morris now states: “Public health officials have concluded that secondhand smoke from cigarettes causes disease, including lung cancer and heart disease in nonsmoking adults” as well as a number of adverse health effects in children. (no bates at 1 of 2) (US 92055).
October 20th, 2006 at 5:05 pm
It is amazing that no major news organization seems to be following this.
An epoch trial, a history-making verdict, a clear statement by the court that the tobacco industry misled the public for decades and continues to mislead every day: that got reported OK.
The need for corrective statements, that was less well reported. The nature of the remedy — misinformation must be corrected by accurate information — less well reported, but it was there. And of course that’s key to understanding why mumbling just doesn’t cut it in the corrective statements: weak, piddling information is not a remedy for massive misinformation.
And now that we’ve gotten to see the corrective statements, yes, we see weak information. In many cases, you couldn’t whisper it softer. And we see even more: outright further misinformation. Pretending to inform, they deceive further.
What’s supposed to be correcting a campaign of misinformation, is actually continuing that campaign.
Yes, a lot of defendant’s corrective statements are hard to distinguish from the deceptive statements they got convicted for.
How is this not news?
Could not be more brazen.
“I got caught vandalizing the park, so all right, here’s my proposal for my community service: I’m gonna go to the park, smash the water fountains, kick the garbage cans over, and spray paint my tag on every available surface”