Select Committee on Health Second Report


231. As a consequence of court orders following the Minnesota Tobacco Trial, and the disclosure of documents following investigations conducted by the US Food and Drug Administration and Federal Trade Commission, around 35 million pages of internal tobacco company documents from the major US tobacco companies have recently been disclosed. As a consequence of the terms of the settlement between the State of Minnesota, Blue Cross and Blue Shield of Minnesota and nine tobacco industry organisations agreed in August 1995 the tobacco companies, including BAT, were obliged to place material in the public domain.[398] Material from the US companies is stored in a depository in Minneapolis; the papers from both Philip Morris and R J Reynolds, from whom we took oral evidence, are stored there and are also accessible on the internet.

232. The significance of the disclosure of this huge body of material cannot be over-estimated. Dr Yach of the WHO told us that the documents allowed them to "walk through the minds of the tobacco industry". The documents, he believed, performed the same function as knowledge of the mosquito would give a researcher into malaria.[399]


233. Under the Consent Judgement settling the Minnesota proceedings, British American Tobacco Limited was required to maintain and operate a depository at Guildford.[400] BAT Industries plc and British-American Tobacco Company Limited were only joined in the litigation in the USA at a late stage.[401] As a consequence of this factor they were only able to comply with the timetable set out in the Minnesota action by stocking the Guildford Depository with all "potentially relevant files" rather than selecting and indexing individual relevant documents. The terms of the agreement also excluded public access to "privileged documents and Category II trade secret documents (relating to blends and formulae)".[402] The order stipulated that BAT should make the depository accessible to the US plaintiffs and their lawyers and should be open to the public for a period of 10 years from February 1998. The Guildford Depository finally opened to the public in February 1999. In the interim, lawyers to the plaintiffs had access to the documents and had requested copies of 350,000 pages many of which they have subsequently placed on the internet.

234. We wanted to explore the extent to which BAT had actually facilitated public access to the Guildford Depository. Following our visit there, and having assessed a number of oral and written submissions, we found a number of areas in which BAT had placed obstacles in the way of researchers and potential litigants examining material in the Guildford Depository and denied what we would consider to be reasonable access. Whilst the Depository was open from 8am to 8pm for the lawyers and plaintiffs, the opening hours to the public are restricted to 10am to 4pm: the Minneapolis Depository is open from 8am to 8pm.[403] Since the Depository opened to the public, BAT has restricted access to "one organization at a time" apparently because of the strain imposed on its resources by the number of requests for copies.[404] From this single organization a maximum of six visitors are permitted.[405] Ms Judith Watt, the former Executive Director of the Victoria Smoking and Health Program in Australia, told us that access to the Depository "has grown significantly more difficult as time has gone by".[406] She forwarded to us correspondence indicating a number of delays and misunderstandings in granting her and her co-researchers reasonable access.

235. BAT argued that the Depository had only been visited on 133 of the 220 days it had been open and that "only one British organization has visited". They suggested that "none of the visitors has been an academic who might have a research interest".[407] In oral evidence Mr Broughton commented that they had not had "one single scientist" visiting.[408] Establishing the reliability of this statement might, however, prove difficult since, according to Ms Watt, the Visitors' Book has now been removed.[409]

236. We find it a matter of concern that BAT takes such an interest in those organizations using the Depository. We do not think it is appropriate for them to sift through the individuals wishing to examine public access materials, working out who is a scientist, who is an academic, who is British or who is a potential litigant. Their limit of a single organization per day, imposed apparently because of the strain on resources caused by multiple group visits, seems to us entirely unreasonable. BAT is a wealthy company with large resources well capable of using them to facilitate greater access to the Guildford papers. The true nature of the priority it attaches to the Guildford site can perhaps be gauged from the fact that the Chairman of BAT told us he had "never actually been taken round the depository". [410]

237. We asked a professional archivist, Dr Caroline Shenton, formerly Senior Archivist at the Public Record Office, to accompany us to the Guildford Depository and at our request she submitted a report on her findings. This was extremely critical of the current arrangements and proposed a number of reforms which we hope BAT will act on. She told us "there is no archival reason why 12 reading room places could not be provided for 12 different visitors" and that "the constraints imposed on the number of visitors allowed to book into the Depository on a single day relate to the amount of staff and equipment BAT employs at the Depository in order to retrieve documents, and not to any issues of handling and preserving the documents".[411] She also noted that none of the nine staff employed at Guildford were trained in archives, and found it "surprising" that the records manager was unqualified.[412]

238. We examined for ourselves the indexes to the files and found that these gave no useful indication of the material contained in the eight million pages stored at Guildford. For example, a search for "disease" yielded only sixty nine entries. This was because only the title of the file was indexed and, as we discovered, this often gave absolutely no indication of the contents.[413] As Dr Bill O'Neill, Scientific Advisor to the BMA, put it: "What does one do when faced with a warehouse of documents that are not adequately indexed?"[414] Dr Shenton suggested that it would be helpful if the index, such as it was, could be made available on the internet. In her view this would "require relatively little time or money".[415] The issue of making documents available on the internet was one we pursued with Mr Broughton. He felt that putting on the internet the remaining "seven and three-quarter million pieces of paper would be an extreme effort for absolutely no purpose whatsoever". Nevertheless, he promised to look at our recommendations in this area.[416]

239. When we visited Guildford, we learned that all pages of documents which were requested for photocopy were first scanned by BAT and sent to their legal department to check for privileged or trade secret information. Once approved, a paper copy is forwarded to the person requesting copies.[417] Dr Shenton noted that there was, therefore, "a growing corpus of checked scanned images (or possibly electronic text if the scanning has been performed by optical character recognition) available within BAT which could be made available online".[418]

240. We believe that the balance of evidence suggests that BAT currently attaches no priority to facilitating public access to material held in Guildford. Dr Yach of the WHO suggested that, for the sum of $2-4 million, BAT could scan all its documents and put them on the internet. This is the course of action some of the American companies have taken, sometimes on cost grounds, in that placing material on the internet reduces the staff time required making it available in photocopied form.[419]

241. We believe that a commitment on the part of BAT to put all non-privileged documents held at Guildford on the internet, preferably in a searchable form, would indicate that it was serious in its attempts to "start the new millennium with a positive approach" to bringing an end to the allegations and arguments which have characterised relationships between public health authorities and the tobacco companies.[420] At the very least, we believe BAT should automatically put all non-privileged documents which it has already scanned, or which it scans in the future, on the internet. Should BAT find this simple, and relatively cheap, option beyond it, the obvious inference should be drawn that they are resisting any attempts to have wider public access to this material. We regard BAT's limits of one organization, and a maximum of six visitors, per day to be indefensible. It seems to us that BAT is failing to enter into the spirit of the Minnesota agreement. Finally, we think that BAT should employ professionally qualified staff and up to date computers at Guildford - in this respect the contrast between the company's research and development facilities, with their highly qualified staff and state of the art equipment which we saw at Southampton, and the archive, with its untrained staff and slow computers, was stark.

Gallaher and Imperial

242. We also wanted to explore the willingness of the major UK companies to place its archive material relating to the companies' knowledge of the health risks of smoking in the public domain. We asked both Mr Peter Wilson of Gallaher and Mr Gareth Davis of Imperial, what the attitude of their companies would be to such a request. Both companies have been obliged in the recent past to make available substantial quantities of internal documents under the discovery process as part of the recent failed UK class action against the companies and both have millions of pages of material in CD-ROM form.

243. Mr Wilson of Gallaher promised the Committee that he would explore the possibility of making this documentation available on the internet.[421] In a subsequent written memorandum he indicated that Gallaher had agreed to put this material in the public domain and would be placing the health related documents on its company website. We very much welcome the approach that Gallaher has taken to our request that it should make its archival material on the health risks of smoking publicly accessible. We believe that this represents a more mature response to the public health issues than has been evinced by UK companies in the past and that Gallaher should be commended for its responsible approach in this area.

244. In contrast to the openness of Gallaher came the much more disappointing response of Imperial. During our hearings Mr Gareth Davis promised to look at the possibility of making electronically available the equivalent documents for Imperial. But in the end Imperial has not complied with our wishes that such material should be freely available in the public domain. Correspondence with Imperial's lawyers indicated that they would only release material for the purposes of the Committee's own research. Given the fact that the material they produced was indexed in a fairly meaningless way, that the text was not searchable, and that the documents concerned ran to hundreds of thousands of pages this offer was, effectively, worthless. Imperial submitted a file index of all their documents, and suggested that the Committee might select particular documents for examination. Again, these files were not indexed in any useful way. For example, files were listed by the name of the recipient and sender rather than by subject matter.

245. In the end, Mr Gareth Davis's promise to co-operate with the Committee in what ways he could proved worthless. We believe that Imperial have adopted a reactionary and defensive posture. Their refusal to place in the public domain documents which may have a real bearing on the public health community's knowledge of the health risks of smoking seems to us lamentable. According to Mr Martyn Day, who did at one time have access to all the documentation, Imperial at one stage adopted an even more unhelpful approach:

    "one of the rather disturbing things is that somebody who came into Imperial in the late 1980s destroyed a lot of documents, had a big fire, so there may be a lot of fire dust on the documents ...."[422]

246. We agree with Mr Day that it would be "to everybody's advantage" if all the UK tobacco documents came into the open.[423] It has been a consistent theme of our report that for too long the UK tobacco companies have operated in a totally artificial environment, where they have been able to deny the truth about the health risks of smoking while Government has failed to take responsibility to regulate the product. It might be felt in some quarters that it was now too late to take regulatory issues seriously. After all, the tobacco companies themselves make much of the fact that smokers have received a mass of information, both from public health bodies and the media, to the effect that smoking is an extremely dangerous activity. From this they conclude that smokers who persist in smoking are making an informed choice.

247. Laying aside the arguments we have put forward that smoking is an addiction normally entered into in childhood before an adult choice can be made, we believe it is important to consider who is actually likely to die from tobacco today and where the epidemic of tobacco deaths will strike most hard in the future. In the West, as evidence we have cited earlier suggests, nicotine addiction is increasingly the preserve of the poor and least educated. In the future, as rates fall in the West, it is to the developing world that the companies are turning. There it would appear they will find a more congenial environment, with populations less well informed of the risks, public health authorities less well armed to counter these, and few restraints on the marketing, sale and composition of tobacco products. Far from dying out, the practice of smoking is actually fast-growing. Whilst one in three adults worldwide currently smoke (about 1.1 billion) that figure is predicted to rise to 1.6 billion by 2025.[424] According to the World Bank, some 80% of these live in the low and middle income countries. The figures of 60 million deaths worldwide since 1950 will be dwarfed by the figures for the next 50 years if current trends continue and ten million people die each year by 2030. The fact that, in terms of total mortality, the tobacco epidemic has hardly begun makes strong and effective counter measures on the part of public health authorities, in our view, a moral necessity.

398   The defendants were Philip Morris Incorporated, R J Reynolds Tobacco Company, Brown and Williamson Tobacco Corporation, BAT Industries plc, Lorillard Tobacco Company, the American Tobacco Company, Liggett Group Inc, the Council for Tobacco Research and the Tobacco Institute. See Michael Ciresi et al, "Decades of Deceit: Document Discovery in the Minnesota Tobacco Litigation", William Mitchell Law Review, 1999:477 pp.477-566. Back

399   Q260. Back

400   Ev., p.338. Back

401   Ev., p.337. Back

402   Ev., p.338. Back

403   Ev., p.524. Back

404   Ev., pp.524-25. Back

405   Ev., p.351. Back

406   Ev., p.525. Back

407   Ev., p.337. Back

408   Q938. Back

409   Ev., p.636. Back

410   Q964. Back

411   Ev., p.542. Back

412   Ev., p.543. Back

413   Q936. Back

414   Q314. Back

415   Ev., p.543. Back

416   Q942. Back

417   Ev., p.543. Back

418   Ev., p.543. Back

419   Q3268. Back

420   Q388. Back

421   QQ905-907; QQ924-27. Back

422   Q1239. Back

423   Q1225. Back

424   Curbing the Epidemic: Governments and the Economics of Tobacco Control, 1999, p.13. Back

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