reading matter, including “anti-ETS” articles. They
are asked for a genuine opinion as independent
consultants, and if they indicate an interest in pro-
ceeding further a Philip Morris scientist makes
contact. Philip Morris then expects the group of
scientists to operate within the confines of deci-
sions taken by PM scientists to determine the gen-
eral direction of research, which apparently would
then be “filtered” by lawvers to eliminate areas ot
sensitivity (p. 2).

As this observer notes, “Although the industry is
in great need of concerted effort and action in the ETS
area, the detailed strategy of Philip Morris leaves some-
thing to be desired. The excessive involvement of ex-
ternal lawyers at this very basic scientific level is
questionable” (Boyse 1988, p. 275). Chapman (1997)
has described this 1988 memo as one that “promises to
blow apart the facade that the tobacco industry carries
out neutral research into passive smoking” (p. 1569).

A study published in May 1998 in the Journal of
the American Medical Association (Barnes and Bero 1998)
concluded that of the 37 percent (39 out of 106) of ar-
ticles reviewed that concluded that ETS is not harmful
to health, 74 percent (29 out of 39) of these were written
by authors with tobacco industrv affiliations. In this
survey, the authors included articles whose stated or
implied purpose was to review the scientific evidence
that ETS is associated with one or more health outcomes.
Articles were excluded if they did not focus specifically
on the health effects of ETS or if they were not written
in English. The authors noted, “In multiple logistic re-
gression analyses controlling for article quality, peer
review status, article topic, and year of publication, the
only factor associated with concluding that passive
smoking is not harmful was whether an author was
affiliated with the tobacco industry” (p. 1566). The au-
thors also found that the “conclusions of review articles
are strongly associated with the affiliations of their au-
thors. Authors of review articles should disclose po-
tential financial conflicts of interest, and readers should
consider authors’ affiliations when deciding how to
judge an article’s conclusions” (p. 1566).

Other Industry-Sponsored Opposition to State
Tobacco Control Initiatives and Advocates

Tobacco interests have used the courts
proactively against other measures to prevent smok-
ing. The proliferation of third-wave litigation against
the tobacco industry has been matched by a more ag-
gressive use of litigation by tobacco interests. For ex-
ample, the industry and its allies filed a preemptive
challenge, on state constitutional grounds, to the

Reducing Tobacco Use

Florida legislation authorizing the state to recover
tobacco-related health spending; the suit was ulti-
mately unsuccessful (Agency for Health Care Adutinis-
tration v, Associated Lidustries of Florida, No. 86,213 [Fla.
June 27, 1996], cited in 11-4 TPLR 2.113 {1996]). Simi-
larly, the Governor of Mississippi, along with the to-
bacco industry, brought unsuccessful proceedings in
the Mississippi Supreme Court to stop the Mississippi
Medicaid reimbursement suit from going forward (In
re Kirk Fordice as Governor of Mississipp! [Miss. S. Ct.],
cited 112.) TPLR 2.3 [1997]; fi re Corr- Williants Tobacco
Co. [Miss. S. Ctl, cited ft 12.1 TPLR 2.1 [1997]). The
tobacco industry also filed preemptive challenges on
federal constitutional grounds to other state lawsuits
even before these suits were filed (e.g., Philip Morris
tnc. vo. Harshbarger, Civil Action No. 95-12574-GAO
[Mass. Nov. 22, 1996], cited i 11.8 TPLR 2.259 [1996];
Philip Morris Tic. v. Grahant, Case No. 960904948 CV
[Utah Dist. Ct. Salt Lake Ctv.], cited in 12.1 TPLR 2.46
(1997 |; Philip Morris frie. @. Blumenthal, No. 97-7122 {2d
Cir, 1997], cifed in 12.5 TPLR 2.305 [1997]), and the in-
dustry has tried to remove these suits from state to
federal court once they were filed (e.g., Massachusetts
o. Philip Morris hitc., No. 96-10014-GAO [D. Mass. May
20, 1996], cited in 11.3 TPLR 2.33 [1996]; Louisiana o.
American Tobacco Co., No. 96-0908 [La. July 16, 1996],
cited in 11.5 TPLR 2.164 [1996]; Maryland v. Philip Mor-
ris Luc., No. CCB-96-1691 [Md. Julv 31, 1996], cited in
11.5 TPLR 2.167 [1996]; Connecticut 2. Philip Morris Ine.,
No. CV960153440S [Conn. Oct. 9, 1996], cited i V4.7
TPLR 2.238 [1996)).

Arguably, the most sweeping litigation measure
taken by the tobacco industry was initiated on August
10, 1995, when Philip Morris and others filed suit to
block the FDA from regulating the sale, promotion, and
distribution of cigarettes to minors. Discussed earlier
in this chapter (see “Further Regulatory Steps”), the
suit challenged the agency's authority to regulate ciga-
rettes under the Federal Food, Drug, and Cosmetic Act.
The lawsuit further charged that the proposed regula-
tions would violate the tobacco companies’ freedom
of speech and would impair their ability to compete
(Collins 1994b).

Tobacco companies have also used litigation tac-
tically to impede the flow of damaging information.
Brown & Williamson Tobacco Corporation brought suit
against a paralegal aide accused of stealing confiden-
tial and potentially incriminating documents (Wyatt,
Tarrant & Combs 0. Williants, 892 S.W.2d 584 [Ky. 1995]).
The documents, some of which were ultimately ob-
tained by members of Congress, have shown that the
tobacco manufacturers not only knew of both the
addictive and the carcinogenic properties of tobacco

a)
ws

Resulatury Prforts
Surgcou General's Report

use but also concealed the evidence for decades
(Shapiro 1994b). R.J. Reynolds brought suit (R.].
Reynolds Tobacco Ca. ©. fol Does, 94-CVS-5867 [N.C.,
Forsyth Ctv. 1994], cited in 9.4TPLR 2,95 [1994}) to stop
the solicitation of damaging «nformation from tobacco
insiders (National Law Journal 1994). In March 1994,
Philip Morris filed a $10 billion libel suit in Virginia
circuit court against the American Broadcasting Com-
pany (ABC) television network, a reporter, and a pro-
ducer of the network's magazine program Day One.
The suit concerned a broadcast segment that focused
on Philip Morris’ chief competitor, RJ. Reynolds To-
pacco Company, and that accused RJ. Reynolds (and,
ineffect, the entire tobacco industry) of increasing the
levels of nicotine in cigarettes to cause addiction among,
smokers (Chamberlain 1994; Janofsky 1994b). RJ.
Reynolds subsequently filed a similar suit. In August
1995, after a siege of unusually aggressive discovery
(Frankel 1995), ABC agreed to apologize for its “mis-
take” in accusing the manufacturers of “spiking,” nico-
tine and to pay for Philip Morris’ legal expenses,
reportedly some $15 million (Freedman et al. 1995).
ABC preferred to avoid the rigors of further litigation
even though “the network’s own lawyers felt they had
a 65 percent chance of winning the case” (Landler
1995). Philip Morris subsequently took out full-page
advertisements in the New York Times, Washington Post,
Wall Street Journal, and other newspapers, proclaim-
ing ABC's capitulation. That Philip Morris chose to
respond to the news report with legal action, rather
than mounting an aggressive advertising campaign as
it has done in the past, is seen as reflecting the
company’s decision to turn over responsibility for
public relations to its lawvers (Landler 1995),
Tobacco companies have heavily funded organi-
zations that oppose smoke-free laws and policies. The
National Smokers Alliance (NSA), for example, purr
ports to be a membership organization on behalf of
smokers. When NSA’s Senior Vice President Gary
Auxier was asked why his organization, which boasts
that it is “a nonprofit, grass-roots membership organi-
zation with more than 3 million members,” in fiscal
year 1996 collected only $74,000 from dues (enough
tor 7,400 members) while its total receipts were more
than $9 million, Auxier chose not to answeT (Levin
1998). The NSA has vigorously attacked the smoke-
free bar law in California, including publicizing bar
owners who have engaged in civil disobedience (PR
Newswire 1998b). Regarding this and other media-
attracting actions, Morain (1998) points out, “ Assist-
ing that group is one of the world’s largest public
relations firms, Burson-Marsteller. The company has
a long-standing, account with the tobacco industry and

954 9 Chapter 5

is renowned for its ability to generate news coverage.
As the organizers tell it, they’re merely tapping the
grass roots of the body politic, giving a voice to eveTy-
day people. Opponents deride the [supposed grass-
roots] campaign as ‘Astroturf’ ” (p- A23).

In opposing a lawsuit based on harm from ETS,
Philip Morris tried to subpoena scientific researchers’
raw data that support epidemiologic research on the
link between ETS and lung cancer. A state judge re-
jected the company’s attempt to get the raw data, citing
4 1990 Louisiana privacy law. The court found that “en-
forcement of the subpoenas would leave the research-
ers with the knowledge throughout continuation of their
studies [that] the fruits of their labors had been appro-

riated by and were being scrutinized by a not unbi-
ased third party whose interests were arguably
antithetical to theirs” (in re Philip Morris Inc., 706 So. 2d
663, 1998 La. App. LEXIS 138 [4th Cir. Jan. 28, 1998).

One important industry tactic is to attack the in-
tegrity of leading tobacco control researchers and ad-
vocates (Sweda and Daynard 1996). For example, a
group called Californians for Scientific Integrity (CS)
sued the University of California in 1997, in part, over
Dr, Stanton Glantz’s 1994 study on the economic im-
pact of smoke-free restaurant laws. Public officials
around the country have used that study to support
passage of clean indoor air laws in their cities and
towns. Funded by the NSA (Sullivan 1997), the CSI
lawsuit alleged that public funds were used improp-
erly in supporting the study. Earlier in 1997, the NSA
had paid $10,000 to Michael Evans, clinical professor
of managerial economics at the J.L. Kellogg Graduate
School of Management at Northwestern University, to
write a report that attacked the Glantz study on smoke-
free restaurants (Price 1997). In November 1997, Sac-
ramento County Superior Court Judge Joe S. Gray
dismissed the CSI lawsuit, saying that “there were No
grounds for the case” (Weinstein 1997b). A lawyer for
the university wrote in a brief that led to the dismissal
that the “true agenda of this action was patently
obvious—to muzzle scientists whose research publi-
cations and speech on subjects relating to tobacco, to-
bacco control and the politics of tobacco have been a
thorn in the side of the tobacco industry for decades”
(Weinstein 1997»).

Industry-Sponsored Litigation Against Local
Tobacco Control Efforts

The tobacco industry has used litigation, as wel
as the threat of litigation, to try to thwart local mea
sures to reduce tobacco use. For example, R.J. Reynold
Tobacco Company financed a 1994 lawsuit filed by Ic
cal restaurant owners in Puvallup, Washington (Sutt!
1994). The suit alleged that the recently enacted ordi-
nance requiring that restaurants be smoke free was
preempted because state law permitted smoking sec-
tions in restaurants and that the city had unlawfully
and substantially deprived the plaintitts of their rights
guaranteed by the L.5. Constitution. Even though the
legal arguments seemed dubious, the City Council
decided to repeal the ordinance rather than expend
the funds necessary to fight the lawsuit (Sweda and
Davnard 1996).

In contrast, a board of health regulation banning
all public smoking in Northampton, Massachusetts,
was unsuccessfully challenged in 1994 CAlexaiider’s
Restaurant, lic. v. City of Northamptor, Civil Action No.
94-307 [Mass. Super. Ct. Oct. 25, 1994).

Philip Morris joined with some local businesses
to file a lawsuit on February 1, 1994, against the city of
San Francisco to try to block an ordinance banning
smoking in public buildings (Holding 1994; Schmeltzer
and Arndt 1994). The plaintitfs argued that the ordi-
nance was preempted by state rules governing work-
place health and satety. However, five months later,
California Governor Pete Wilson signed into law a
measure banning smoking in most indoor workplaces
and allowing local governments to enforce even stricter
antismoking ordinances. The tobacco industry shifted
away from its lawsuit against San Francisco and spon-
sored Proposition 188, an initiative that would elimi-
nate local smoking laws and replace them with a
weaker statewide standard (Epstein and Russell 1994).
Although the tobacco industry spent $18.9 million on
behalf of Proposition 188, about 18 times the amount
spent by opponents, California voters resoundingly
rejected the measure. Proposition 188 garnered less
than 30 percent of the vote (Morain and Ellis 1994).

Local restrictions against cigarette vending ma-
chines have increasingly come under attack by ciga-
rette distribution companies suing in several states
(Schmit 1994; Sullivan 1994). In one such instance, the
Massachusetts Supreme Judicial Court unanimously
upheld a Provincetown bylaw that banned cigarette
vending machines from that town (Take Fieve Vending,
Ltd. v. Town of Provincetowit, 415 Mass. 741, 615 N.E.2d
576, 1993 Mass. LEXIS 440 [Mass. Mar. 4, 1993)).

In addition to the above-mentioned cases, other
local ordinances forbidding tobacco use in public
places and regulating various forms of outdoor adver-
tising have been challenged. As discussed earlier in
this chapter (see the case description of Peni Advertis-
ing of Baltimore, lnc. 0. Mayor and City Council of Balti-
more ina subsection of “Constitutionality of Regulating
Tobacco Advertising”), the outcomes of these chal-
lenges have been mixed.

Reducing Tobacco Use

Anticipatory Effects

Law works not only by coercive imposition but
also by signals about authoritative (and potentially
changeable) norms and about the potential disposition
of legal coercion. Litigation may have an effect not
only on those who are parties to it but also on other
potential legal actors (plaintiffs, defendants, and at-
tornevs who learn about the litigation) (Galanter 1983).
Depending on the outcome of a litigation, similarly
situated injured parties, for example, may abandon or
modify—or conversely, may decide to continue—their
risk-creating behavior or may be either encouraged to
make a legal claim or discouraged from claiming. Law-
vers may be encouraged to mount or discouraged from
mounting claims or defenses. Uninvolved actors (such
as potential business partners) who anticipate dealing
with parties or potential parties may respond to liti-
gation signals by modifying (or even terminating) their
dealings with those parties. Such signals may be de-
rived not only from authoritative decisions but also
from the process of the litigation itself, which may ex-
hibit advantages to be gained or costs to be avoided.
For example, news organizations viewing the fierce
and expensive industry response to critical depiction
may hesitate to portray industry practices negatively
(Freedman and Stevens 1995).

More often, third-wave tobacco litigation pro-
vides dramatic evidence of the indirect, anticipatory
effects of litigation on reducing tobacco use. In early
1995, three prominent manufacturers recoiled from
business dealings with cigarette makers to avoid the
risk of getting embroiled in liability litigation. The
Manville Corporation sued RJ. Reynolds Tobacco
Company for a declaratory judgment that the corpo-
ration does not have a contract to supply fiberglass
for cigarette filters (Appleson 1995). A few days later,
Harley-Davidson, Inc., responding to a 1993 suit by
the Lorillard Tobacco Company to enforce an agree-
ment licensing the motorcycle maker’s name for a
brand of cigarettes, countersued, alleging that tobacco
liability risks reduced Lorillard’s ability to fulfill
its contract (Rose and Hwang 1995). Papermaker
Kimberly-Clark Corporation (which had been named
a defendant in the West Virginia health care provider
suit), the world leader in tobacco papers, decided to
sell its cigarette paper business. The company denied
that liability fears or shareholder activism played any
part in its decision, but analysts said that such con-
cerns were dominant factors (Collins 1995a). Other
companies, such as Pfizer, have adopted policies “pro-
hibiting units from doing business with Big Tobacco
and its suppliers” (Mallory 1995, p. 39).

Regulatory Efforts 255
Srp Qeddt Gach? als Report

Another set of actors responsive to signals about
liability are insurers. Presumably, \ irtually all of the
suppliers and professionals \who serve cigarette mak-
ers carry liability insurance. The tobacco manufactur-
ers themselves have been insured for at least some
liability risks, although the amount of insurance cov-
erage of the tobacco companies is unknown (Reidy and
Carter 1995). If anv of these insured parties are found
liable for promoting or selling, tobacco products, the
insurers can be expected to contest coverage, USING as
defenses against liability to the insured many of the
same arguments that plaintiffs use to establish the li-
ability of the insured. If, forexample, liability involves
attribution to the industry of knowledge of a causal
link to disease or concealment of that information, then
to defeat coverage, the insurer may likewise claim that
the insured had wrongfully and knowingly obtained
coverage for a business practice whose dangers were
concealed from the insurer. “Tn effect,” note two ana-
lvsts, “the insurance industry will have to prove the
very thing the policyholder is trying to deny in the
tobacco-related suits” (Reidy and Carter 1995, p. S38).
Thus a “breakthrough” by tobacco plaintiffs may lead
toa “second front” of liability battles between tobacco
defendants and their insurers.

Indeed, in 1996, Imperial Tobacco Limited (No.
500-05-014084-964 [Canada S. Ct., Prov. ot Quebec,
Dist. of Montreal Jan. 12, 1996], cited #7 11.1 TPLR 3.39
[1996}) filed suit in the Superior Court of Quebec
against two Toronto-based liability insurance
companies—American Home Insurance Company
and Commercial Union Assurance Company ot
Canada—demanding that they pay legal costs and
anv damages arising from a class action suit filed
against Imperial in Ontario by Mr. David Caputo and
three other persons in 1995, The Canadian class ac-
tion suit, which has not vet been resolved, seeks dam-
ages on behalf of nicotine-addicted persons who have
suffered because of their addiction to nicotine. _Impe-
rial claims to have had policies issued by the insurers
obligating them to reimburse Imperial for legal costs
incurred in the class action and to pay any further costs
they may incur in this matter. The tobacco company
is, in essence, asking the Superior Court of Quebec fora
declaration that the two named insurance companies
must pay all of Imperial’s legal fees and all sums
awarded by an eventual finding ot liability by the
Ontario court (Tobacco Products Litigation Reporter 1993b).

Finally, the investment community is greatly in-
terested in the potential effects of legal liability on the
future profitability and solvency of the tobacco com-
panies. Tobacco cases are closely tracked by invest
ment analysts, and “even interim events in peripheral

230 Chapter 5

cases can propel share prices in one direction or an-
other” (Orey 1995, p. 70). The overhang of potential
liabilitv casts a shadow on tobacco stocks. Opinions
differ about just how much these stocks are discounted
for liability, but there is general agreement that the re-
moval of the liability shadow would be worth many
billions in increased stock value. This volatile combi-
nation of possible liability and latent value means that
any breach in the previously impregnable liability
ramparts would inaugurate a period of pronounced
instability among tobacco investors. Some analysts
imagine a zone of agreement that would locate a com-
prehensive settlement, which would in turn unlock
the unrealized value of tobacco stocks while provid-
ing generously for the victims of tobacco. However,
because present litigants cannot preclude future
plaintiffs, it remains unclear whether litigation can
provide the finality and closure that a comprehen-
sive settlement would require. Litigation can set off
ramifving effects and in general advance a formerly
sluggish or obstructed state of affairs, but it is not
clear whether it can contain these effects or design
an all-encompassing resolution or policy.

Criminal Proceedings

Another arena in which attention is being given
to the activities of the tobacco industry is the criminal
justice system. Since 1995, the U.S. Department of Jus-
tice has conducted an ongoing investigation of the al-
leged violation of federal criminal laws by tobacco
companies, tobacco company executives, tobacco
industry-supported trade and scientific associations,
and other entities that have conducted business with
the tobacco industry.

The Justice Department initiated a formal inves-
tigation of the tobacco industry in response to the fil-
ing in 1994 of a comprehensive legal analysis, referred
to asa prosecution memorandum, by Representative
Martin T. Meehan (D-MA) with the U.S. Attorney Gen-
eral (Hohler 1994; Mallory 1994, 1995; Meehan 1994;
Schwartz 1994; Miga 1995; Reuters 1996; Rodriguez
and Tavlor 1998), The prosecution memorandum pe-
titioned the Justice Department to consider allegations
that tobacco companies, tobacco company executives,
and others had violated multiple criminal laws by pro-
viding false information to the FDA and the U.S. Sur-
geon General (18 U.S.C. section 1001), committing
perjury in testimony before Congress (18 U.S.C. sec-
tion 1621), perpetrating mailand wire fraud (8 U.S.C.
sections 1341 and 1343, respectively), engaging in de-
ceptive advertising practices (15 U.S.C. section 32), and
violating federal conspiracy and racketeering laws (18
U.S.C. sections 371 and 1962, respectively) (Meehan
1994: Shane 1997; Corporate Crime Reporter 1998;
Clifford E. Douglas. The criminal investigation of the
tobacco industry. Speech to the 13th Annual Confer-
ence of the Tobacco Products Liability Project; May 31,
1998; Boston; unpublished data).

Nature, Extent, and Focus of the Criminal
Investigation

The Justice Department's investigation began as
a preliminary inquiry focused on alleged perjury aris-
ing out of testimony delivered under oath by seven
tobacco company executives who stated before a con-
gressional subcommittee on April 14, 1994, that they
did not believe that nicotine is addictive. The initial
inquiry was later expanded toa formal grand jury in-
vestigation to address broader allegations that tobacco
companies had, among other things, violated 18 U.S.C.
section 1001,

Section 1001 prohibits the making of false state-
ments to agencies and officials of the federal govern-
ment (Hilts 1995; Novak and Freedman 1995; Appleson
1996; Blum 1996; Freedman 1996; Thomas and
Schwartz 1996; Stohr 1997). In contrast to the level of
proof required for a showing of perjury, section 1001
does not require a showing that a person knowingly
lied under oath. It also allows prosecution for the with-
holding of information. Besides addressing potential
section 1001 violations, the investigation continues to
focus on other allegations of criminal conduct, includ-
ing fraud, conspiracy, and racketeering (Cole and Tay-
lor 1998; Corporate Crime Reporter 1998; Davis and Dutfy
1998; Douglas, unpublished data; Duffy and Tavlor
1998; Meier 1998c).

As of mid-1998, two federal grand juries were con-
sidering evidence of alleged tobacco industry wrong-
doing. One grand jury was assigned to hear evidence
presented by prosecutors from the Fraud Section of the
Justice Department's Criminal Division regarding the
broad allegations of criminal misconduct described
above. The second grand jury was assigned to review
information presented by the U.S. attorney for the East-
ern District of New York. The work of the second grand
jury concerned a related criminal investigation whose
focus is an alleged conspiracy by major tobacco manu-
facturing companies to suppress legitimate medical re-
search and promote biased research through the
industry-sponsored Council for Tobacco Research. The
Justice Department coordinated these complementary
investigations (Cohen and Geyelin 1996; Thomas and
Schwartz 1997; Davis and Dufty 1998).

Reducing Tobacco Use

A third criminal investigation was begun in 1995
to determine whether a major cigarette manufactur-
ing company may have committed securities fraud by
failing to disclose all it knew about nicotine. Under
securities laws, companies are required to disclose sig-
nificant information that may affect their stock price.
The third investigation was initiated by the USS. attor-
ney for the Southern District of New York, following
the publication of an investigative news article that
reported that, based on a review of 2,000 pages of pre-
viously undisclosed documents, Philip Morris Com-
panies Inc. had conducted many years of secret
research into the pharmacologic effects of nicotine on
the human brain and central nervous system (Freed-
man and Lambert 1995; Hilts and Collins 1995). The
securities fraud investigation subsequently was con-
solidated with the main Justice Department investi-
gation (Philip Morris Companies Inc. 1998).

Federal prosecutors have interviewed witnesses,
compiled comprehensive company dossiers, and is-
sued subpoenas, all under the supervision of the U.S.
Attorney General. Several of the major cigarette manu-
facturing companies, such as RJ. Reynolds Tobacco
Company and Philip Morris Companies Inc., as well
as others, confirmed publicly that they are the subject
of federal criminal investigations relating to the mat-
ters described above and that employees of the com-
panies have received requests for information,
including orders to produce internal documents and
subpoenas to testifv before the grand juries (Goshko
1995; Hilts 1995; Miga 1995; Associated Press 1996a,b;
Bloomberg Business News 1996a,b; Federal Filings-
Dow Jones News 1996; Johnston 1996; Jones 1996;
Reuters 1996; Thomas and Schwartz 1996; Tribune
News Services 1996; Weiser and Schwartz 1996; Shaffer
1997; Philip Morris Companies Inc. 1998).

In an April 1998 announcement that it had
reached a cooperation agreement with a cigarette
manufacturing company in support of the criminal
investigation, the Justice Department identified five
main subject matter areas on which it was focused (U.S.
Department of Justice 1998). These were industry
knowledge of the health consequences of smoking
cigarettes and the addictive nature of nicotine; the tar-
geting of children and adolescents by the industry; the
manipulation of nicotine by the industry; control of
research by the Council for Tobacco Research, includ-
ing special projects conducted under the auspices of
the council; and lawyer involvement in directing re-
search or crafting false or misleading statements by
any of the tobacco companies to the Congress, the FDA,
and the American consumers concerning the above.

Regulatory Efforts 257
Surgeon General's Report

The announcement of the cooperation agreement
was interpreted by legal experts as a sign that the crimi-
nal investigation was accelerating and the Justice De-
partment was likely to file broad conspiracy charges
against major cigarette companies in the future (Cole
and Taylor 1998; Corporate Crime Reporter 1998; Dou-
glas, unpublished, Duffy and Taylor 1998; Keil 1998;
Levin and Ostrow 1998; Schwartz 1998a).

Key Sources of Evidence

The gathering of evidence by the Justice Depart-
ment was advanced by the increased availability of an
array of outside resources. These included the results
of the extensive investigation of the tobacco industry
conducted by the FDA from 1994 to 1996. The FDA's
administrative record and investigative files were
made available to the Justice Department, providing
prosecutors and investigators with a significant body
of information concerning tobacco manufacturers’
knowledge of the addictive nature of nicotine and of
the manipulation and control of the substance (Federal
Register 1995b, 1996).

Another important source of information for Jus-
tice Department officials was the voluminous hearing
record produced over a 10-month period in 1994 by
the Subcommittee on Health and the Environment of
the Committee on Energy and Commerce in the U.S.
House of Representatives (1995a,b,c,d). The subcom-
mittee, chaired by U.S. Representative Henry A.
Waxman (D-CA), held numerous hearings in which
testimony was obtained from a variety
including the commissioner of the FDA, other federal
government health officials, experts in nicotine addic-
tion, tobacco company representatives, and former
tobacco company scientists, among many others. In
addition, Representative Waxman made available hun-
dreds of previously secret nicotine research documents
from the largest cigarette manufacturer by reading
them into the public record on the floor of the House
of Representatives in July 1995 (Associated Press 1995,
Congressional Record 1995a,b; Schwartz 1995).

A third significant source of evidence in support
of the Justice Department's criminal investigation
was the emergence of internal tobacco company docu-
ments and testimony obtained in private lawsuits
brought against tobacco industry defendants. Start-
ing in 1994, these civil cases were initiated by state at-
torneys general, private classes of allegedly addicted
and injured smokers, and individual plaintiffs, as de-
scribed earlier in this chapter (see “The Third Wave of
Tobacco Litigation”). The simultaneous litigation of
numerous civil suits and the Justice Department's

of witnesses,

258 Chapter 5

pursuit of its criminal investigation have produced a
notable synergy. Millions of previously undisclosed
tobacco industry documents that were obtained
through the discovery process in civil lawsuits became,
in many instances, readily accessible to federal pros-
ecutors (Curriden and Rodrigue 1997; Geyelin 1998;
Meier 1998c; Rodriguez and Taylor 1998; Scherer and
Rybak 1998; Schwartz 1998c).

Initial Results of the Criminal Investigation

The Justice Department's ongoing investigation
resulted in a first conviction in 1998. Under the terms
of an agreement with the government, a biotechnol-
ogy company, DNA Plant Technology Corporation,
pleaded guilty to a misdemeanor charge of conspir-
ing to break a law that had made it illegal to export
tobacco seeds. The company was found to have en-
gaged in such unlawful conduct in cooperation witha
leading cigarette manufacturing company, identified
as an unindicted coconspirator, with whom it had
contracted to patent and develop a genetically altered
tobacco code-named Y-1, which contained approxi-
mately twice the nicotine of ordinary tobacco. Accord-
ing to the Justice Department, the prosecution
memorandum submitted by Representative Meehan,
and the FDA, one of the goals of the cigarette come
pany in conspiring with the biotechnology company
was to develop a reliable source of supply of high-
nicotine tobaccos that could then be used to control
and manipulate the nicotine levels in several popular
cigarette brands (Meehan 1994, Federal Register 1995b,
1996; Meier 1998d; Neergaard 1998; Schwartz 1998b;
Schwartz and Connolly 1998; Taylor 1998; Taylor and
Rodriguez 1998; Weinstein 1998b).

Beginning in 1997, the threat of criminal liability
led certain individuals associated with the tobacco in-
dustry, such as Thomas 5. Osdene, Ph.D., former Di-
rector of Research for Philip Morris Companies Inc.,
and Roger R. Black, current Director of Leaf Blending
for Brown & Williamson Tobacco Corporation, to
decline to answer questions under oath, choosing -
instead to invoke the Fifth Amendment right against
self-incrimination (Gevelin 1997; Meier 1997; Weinstein -
1997a; Anderson 1998). Some officials sought immu-
nity from prosecution in exchange for their coopeta--
tion. Such offers were met with mixed responses from
the Justice Department. Typically they were rejected,
but in one publicized instance a request for immunity
was granted (Geyelin 1997; Stohr 1997; Weinstein
1997a). The Justice Department granted immunity to
Janis A. Bravo, a scientist formerly with DNA Plant
Technology Corporation and coholder of the patent for
a high-nicotine tobacco plant called Y-1, developed for
Brown & Williamson Tobacco Corporation.

Prognosis for Future Actions Through the Criminal
Justice Process

Federal prosecutors possess considerable discre-
tion both in terms of bringing charges against alleged
wrongdoers and, in the event a strong case is devel-
oped, in seeking, concessions from criminal targets in
the plea-bargaining process. In light of these options,
the Justice Department may seek to require tobacco
manufacturing companies to modify their advertising
and marketing practices so as to render them unap-
pealing to young people, stop manipulating nicotine
or using nicotine-enhancing chemicals, pay the fed-
eral government significant monetary penalties, and
submit to regulation by the FDA (Corporate Crime Re-
porter 1998; Douglas, unpublished data).

Given the breadth and complexity of the crimi-
nal investigation of the tobacco industry, as well as the
substantial burdens of proof that prosecutors must
satisfy pursuant to the federal criminal statutes noted
above, it is not possible to predict the outcome of the
current criminal investigative process. From its incep-
tion, the investigation was anticipated to bea lengthy,
complicated operation, in part because of the
government's responsibility to process and review
millions of pages of documents obtained from the to-
bacco industry and other sources (Thomas and
Schwartz 1996).

With the Justice Department's accumulation of
a growing body of evidence, including company
documents and grand jury testimony, as well as the
cooperation of the Liggett Group Inc. in support of
the government's investigation, some legal experts
have described the investigation as likely to result in
further action (Cole and Taylor 1998; Corporate Crime
Reporter 1998; Douglas, unpublished data; Duffy and
Taylor 1998; Keil 1998; Levin and Ostrow 1998;
Schwartz 1998a). One recent indicator that the issu-
ance of indictments might be near was the delivery
by Justice Department officials of letters to Brown &
Williamson Tobacco Corporation and its officials, for-
mally notifying them that they are the targets of a
criminal investigation and that they face possible
prosecution (Davis and Duffy 1998; Meier 1998c; Wall
Street Journal 1998).

Further criminal action against the tobacco in-
dustry also raises the likelihood of diluting the influ-
ence of the industry’s political lobby, thereby
strengthening the ability of public health proponents
to advocate for more stringent regulation of the

Reducing Tobacco Use

manufacture, sale, distribution, advertising, and pro-
motion of tobacco products (Douglas 1998).

Comment

After 40 years in which two waves of product
liability litigation proved unavailing, there has been a
recent upsurge of investment and innovation in to-
bacco litigation. This third wave of litigation departs
from its predecessors in various ways:

e |tmoves away from exclusive reliance on smokers
as plaintiffs, because so many cases have been de-
cided against them as the victims of their own, in-
formed behavior choices. Plaintiffs now include
states, cities, pension funds, private health care pro-
viders, and persons exposed to ETS, none of whom
can be blamed for smoking in the face of warnings.

¢ It multiplies the range of legal issues. Instead of
focusing exclusively on common-law tort doctrine,
third-wave litigation also invokes various statutory
claims under consumer, antitrust, and other pro-
tective legislation.

* [texpands from the classic private lawsuit by a dis-
crete plaintiff to the class action device.

¢ It expands from solely seeking monetary damages
to including claims for injunctive relief, medical
monitoring, and the recovery of attorneys’ fees.

It shifts from a pure model of private law to mixed
strategies in which private law is used to effectu-
ate public policy by defending public fiscal inter-
ests and by enhancing the performance of statutory
and regulatory controls of tobacco.

° It enlarges the roster of claimants’ lawyers from
those who specialize in representing individual
plaintiffs in personal injury cases to include mass
tort specialists and entrepreneurial securities class
action lawyers. These attorneys, who typically
practice in larger firms than individual plaintiff at-
torneys and have greater financial resources, are
joined in more complex coalitions, including alli-
ances with government lawyers.

Considerable uncertainty surrounds each of the
several third-wave litigation initiatives and their
potential contribution to reducing tobacco use. The
prospect of using private law in these ways has cap-
tured attention only recently. In a wide-ranging 1993
review of tobacco policy (Rabin and Sugarman 1993),
virtually all of the attention to private law was devoted

Regulatory Efforts 259
Surgeon General's Report

to smokers’ product liability litigation. The newer le-
gal theories that are now available to plaintiffs have
considerable potential. Just how these initiatives will
fare depends both on developments within the legal
system and on forces outside it.

Normally, law incorporates and reflects public
opinion. Ina setting where smoking declines and be-
comes disreputable, particularly among the educated
and influential (Zimring 1993), where smokers are in-
creasingly viewed either as victims of coercion and
addiction or as a minority group becoming more dis-
tanced from others (Gusfield 1993), and where evi-
dence accumulates that the tobacco companies
aggressively recruit new smokers and suppress knowl-
edge of harmful effects of smoking, the law can be ex-
pected to respond to pressures to extend accountability
and to provide remedies, if not to smokers then to those
who are otherwise adversely affected by smoking.

However, other forces are working against an
enlarged role for the civil justice system in the effort to
reduce tobacco use. Important groups, displeased with
the expansion of legal accountability, have mounted a
protracted and influential campaign to curtail the civil
justice system and weaken the position of claimants
within it (Galanter 1993, 1994). Apart from these ex-
ternal constraints, the very magnitude of tobacco
injury—the vast number of potential claimants
involved—raises apprehension about the courts’ in-
stitutional capacities to respond. Driven by the desire
to conserve their scarce resources, courts will tind ways
to ration the judicial attention bestowed on any siz-
able set of related cases (Sanders 1992). As the size of
the potential victim class increases, the chances for
individualized judicial resolution decrease. It has been
argued that the litigation about Agent Orange, the

Conclusions

Bhopal disaster, and asbestos-related injury should be
viewed as instances in which the sheer number of
claims “simply overwhelmled} the capacity of legal
institutions to meet victim compensation needs” and
led to improvisation of formulaic administrative solu-
tions (Durkin and Felstiner 1994, p. 159; cf. Henderson
and Twerski 1991, on judicial aversion to such mas-
sive projects).

A balanced assessment of the possible contribu-
tion of private law initiatives to the effort to reduce
tobacco use must consider not only the costs and ben-
efits of the various initiatives but also the likelihood
of accomplishing similar results by other institutional
means (Komesar 1994). Typically, private law involves
high transaction costs (Galanter 1994). Private law is
by definition the creature of independent actors whose
operations are not centrally managed and are at most
partially and intermittently coordinated; each actor is
trying to maximize its own gains as it defines them.
No single initiative or the sum of such efforts will nec-
essarily produce an optimal policy to reduce tobacco
use. Yet private law may bea valuable component in
reducing tobacco use precisely because it is an arena
in which multiple courses of action are advanced by
energetic champions who are open to new ideas and
who, independent of government, can undertake in-
novative and even risky initiatives without securing
official approval or competing for priority with other
political commitments. Such initiatives may thus be
able to stimulate and shape policy solutions. Other
than as an agent or catalyst, however, itseems unlikely
that the judicial forum, ina setting involving politi-
cally powerful actors and an unpredictable number of
inchoate future claimants, will itself provide the ulti-
mate policy resolution.

ne

Advertising and Promotion

1. Since 1964, numerous attempts to regulate ad-
vertising and promotion of tobacco products
have had only modest success in restricting such
activity.

260 Chapter 5

N

Current regulation in the United States is con-
siderably less restrictive than that in several other
countries, notably Canada and New Zealand.

3. Current case law supports the contention that ad-
vertising does not receive the protections of free
speech under the First Amendment to the Con-
stitution that noncommercial speech does.
Product Regulation

“1

Warning labels on cigarette packages in the
United States are weaker and Jess conspicuous
than those of other countries.

Smokers receive very little information regard-
ing chemical constituents when they purchase a
tobacco product. Without information about
toxic constituents in tobacco smoke, the use of
terms such as “light” and “ultra light” on pack-
aging and in advertising may be misleading to
smokers.

Because cigarettes with low tar and nicotine con-
tents are not substantially less hazardous than
higher-yield brands, consumers may be misled
by the implied promise of reduced toxicity un-
derlying the marketing of such brands.

Additives to tobacco products are of uncertain
safety when used in tobacco. Knowledge about
the impact of additives is negligible and will
remain so as long as brand-specific information
on the identity and quantity of additives is
unavailable.

Regulation of tobacco product sale and promo-
tion is required to protect young people from in-
fluences to take up smoking.

Clean Indoor Air Regulation

i)

Qs

Although population-based data show declining
ETS exposure in the workplace over time, ETS
exposure remains a common public health haz-
ard that is entirely preventable.

Most state and local laws for clean indoor air re-
duce but do not eliminate nonsmokers’ exposure
to ETS; smoking bans are the most effective
method for reducing ETS exposure.

Beyond eliminating ETS exposure among non-
smokers, smoking bans have additional benefits,
including reduced smoking intensity and poten-
tial cost savings to employers. Optimal protec-
tion of nonsmokers and smokers requires a
smoke-free environment.

bo

Reducing Tobacco Use

Minors’ Access to Tobacco

Measures that have had some success in reduc-
ing minors’ access include restricting distribu-
tion, regulating the mechanisms of sale, enforcing
minimum age laws, having civil rather than
criminal penalties, and providing merchant edu-
cation and training. Requiring licensure of to-
bacco retailers provides both a funding source
for enforcement and an incentive to obey the law
when revocation of the license is a provision of
the law.

The effect of reducing minors’ access to tobacco
products on smoking prevalence requires further
evaluation.

Litigation Approaches

N

Two historic waves of tobacco litigation were ini-
tiated by private citizens, were based largely on
theories of negligence and implied warranty, and
were unsuccessful.

A third wave has brought in new types of claim-
ants, making statutory as well as common-law
claims and using more efficient judicial proce-
dures. Although several cases have been settled
for substantial money and have yielded public
health provisions, many other cases remain un-
resolved.

Private law initiative is a diffuse, uncentralized
activity, and the sum of such efforts is unlikely
to produce optimal results for a larger policy to
reduce tobacco use. On the other hand, the liti-
gation actions of individuals are likely to be a
valuable component in some larger context of
strategies to make tobacco use less prevalent.

Regulatory Efforts 261
Surgeon General's Report

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