MEMORANDUM BY MR MARTYN DAY
THE TOBACCO INDUSTRY AND THE HEALTH RISKS
OF SMOKING (TB 35)
A. INTRODUCTION
1. I am the joint senior partner at Leigh,
Day and Co, a firm of solicitors based in Clerkenwell in the City
of London. My firm represented many hundreds of claimants in actions
against the British tobacco companies between 1992 and 1999. I
was the partner responsible for the running of the actions. I
set out below:
(a) what the case for the claimants was;
(b) the tobacco companies' response;
(c) what we learnt of relevance to the enquiry
from the hundreds of thousands of pages of documents from and
related to the operation of the British industry and its relationship
with the British Government read by my team during the course
of the case.
B. THE ACTION
2. I would not have thought the Committee
will be interested in the details of what happened to the legal
proceedings but an outline might be useful. I would be happy to
answer questions on this if members require further information.
3. The legal process commenced in 1992 when,
following a ruling in the Amercian courts, my firm and Bindman
and Partners took the view that a claim could be made against
the tobacco companies. We placed two small adverts in local papers
in London and Liverpool (where we had an office) and some 300
smokers suffering smoking related illnesses came forward. We applied
for legal aid and then entered a battle royale with the Legal
Aid Board that lasted some four years. Legal aid was granted for
a short while but was eventually withdrawn.
4. Many of the potential claimants were
keen to continue and my firm remained of the view there was a
good claim to be made against the UK tobacco companies. We decided,
therefore, to pursue claims on behalf of those suffering from
lung cancer, as being the strongest actions under the conditional
("no win no fee") fee scheme and legal proceedings was
commenced on behalf of around 50 Claimants in November/December
1996 against Imperial Tobacco and Gallaher, referred to as the
British Tobacco Companies.
5. The British Tobacco Companies, as one
might well expect, fought the action with everything at their
disposal, putting one procedural hurdle in front of us after another.
Included within this was their argument that as we, the lawyers,
were running the action under the conditional fee scheme we were
"maintaining" the action and therefore would be responsible
for their costs, if the case was lost. They further successfully
applied to have the legal team "gagged". However, on
this matter going before Lord Woolf in the Court of Appeal in
February 1998, both matters were resolved in the Claimants' favour.
6. As the cases progressed toward a trial
date provisionally reserved for late 1999/early 2000, the British
Tobacco Companies successfully obtained an order that there be
a procedural hearing on the issue of limitation. Two thirds of
the 50 claimants with lung cancer had issued proceedings more
than three years after their cancers were diagnosed and we were
applying for the Judge to exercise his discretion to allow the
claims to be pursued notwithstanding the fact they were issued
outside the limitation period. We had asked that this issue be
dealt with at trial, not least because the discovery process was
only partially completed by the time this application was heard
and, therefore, nothing like the full picture had emerged.
7. The two week "limitation hearing"
took place in December before Mr Justice Wright who had been allocated
to deal with the whole case, including the trial. In February
of this year, we received his judgment on this issue. Mr Justice
Wright not only refused to allow the limitation claims to proceed
but additionally made his lack of enthusiasm for the whole action
abundantly clear. As he had been appointed as the trial judge
the Claimants' legal team were clear that our chances of success
had reduced well below the point where it was worth carrying on
and the claims were abandoned.
8. I should also, perhaps, mention the undertakings
that now surround me following the conclusion of the action. In
negotiating a resolution to the action the legal team was extremely
anxious to ensure that the group of 50 or so claimants, (all in
their 60s and 70s) were not bankrupted by the British Tobacco
Companies' in their enforcing their massive costs (that were around
£15 million). The only way the British Tobacco Companies
would agree to release them from this burden was if myself and
John Pickering of Irwin Mitchell (the other Claimants' law firm)
gave personal undertakings and the two firms general undertakings,
not to act in future tobacco cases. We also had to agree not to
make reference to evidence the case had revealed or to campaign
against the British Tobacco Companies. Although these are extremely
onerous undertakings, John and I felt that our absolute duty was
to protect the Claimants and we, therefore, signed them.
9. In being asked to give evidence before
the Committee I asked the British Tobacco Companies if they were
prepared to release me from the undertaking regarding my referring
to evidence I have read and they confirmed their agreement to
this.
C. THE CLAIMANTS'
CASE
10. To understand the case the Committee
will have a reasonable understanding of what happened in the 1950s
and 1960s as the science developed as that set the scene for the
following years. Maybe it has already read this from others and,
if so, I apologise for repeating it.
11. In the first half of this century there
was a very significant rise in the number of deaths resulting
from people developing lung cancer. For example between 1922 and
1947 such deaths increased in the UK 15-fold from 612 to 9,287
per annum. A number of hypotheses emerged as to what was causing
this increase such as improved standards of diagnosis, atmospheric
pollution and the smoking of tobacco. Prior to 1950, there had
been a number of epidemiological and animal studies that suggested
smoking as a possible cause of cancer but the studies were small
and therefore inconclusive, albeit they all pointed to smoking
being a cause of cancer (Doll R, Hill AB, Smoking and Carcinoma
of the Lung Preliminary Report. British Medical Journal
1950; 2 739-48).
12. In 1950 two large statistical studies
testing the hypothesis of an association between smoking and lung
cancer by Doll and Hill in the UK and by Wynder and Graham in
the USA were published. The authors concluded that excessive and
prolonged use of tobacco, especially cigarettes seemed to be an
important factor in the induction of bronchogenic carcinoma. In
the following years Doll, Wynder and others published a number
of further studies showing similar results.
13. In 1953 Wynder, Graham and Croninger
published a paper entitled Experimental Production of Carcinoma
with Cigarette Tar. This study demonstrated for the first
time that mice skins repeatedly painted with cigarette tar condensate
produced carcinomas. Prior to this study there had been a number
of similar studies where few cancers had been produced. It was
suggested by Wynder et al that this was due to technical inadequacies—in
particular that the duration of the skin painting was too short.
This study spawned a series of further mouse painting studies
over the following few years with similar results.
14. The causal nature of the relationship
between smoking and lung cancer was given further support by a
series of pathological studies undertaken in smokers to assess
the morphological changes in lung tissues which might precede
the development of an overt tumour. Auerbach and his colleagues
published a set of papers beginning in 1957, in which they examined
lung tissue amassed at autopsy from American smokers. Certain
morphological changes in the cells lining the bronchi, such as
cell hyperplasia, stratification and carcinoma-in-situ, were found
in smokers increasing in parallel with the numbers of cigarettes
smoked.
PREVENTIVE MEASURES
15. In 1952 the BMJ were already calling
for preventive measures to be taken by the tobacco companies.
In September 1953 they published a lecture given by Dr Doll. He
warned against waiting for the attempt to isolate the carcinogens
in tobacco:
"To summarise, most of the known epidemiological
facts about bronchial carcinoma are consistent with the effects
of a limited number of industrial carcinogens and the presence
of a carcinogenic substance in tobacco smoke—particularly
in that derived from cigarettes. . . It may also prove that it
will be unnecessary to await the isolation of the specific active
agent before steps can be taken to halt the rapid increase in
the mortality from bronchial carcinoma and to turn it into an
even more dramatic decline. "
16. Referring to the results of his studies,
he pointed to a possible route for this:
"Users of cigarette-holders and smokers
of filter-tipped cigarettes have been found less frequently among
lung carcinoma patients than among patients with other diseases.
The proportion of persons who have been accustomed to smoke in
this way is small and the number of recorded observations is too
few for firm conclusions; they are however, consistent with the
observations on pipe smokers, and it seems probable that each
of these methods of smoking may partly separate out an active
agent before it reaches the respiratory tract.".
17. The BMJ supported Doll's approach in
their editorial in December 1953 where they wrote:
"The present developments (ie Wynder's
1953 study and the proposal that the specific carcinogens might
be identifiable) must not be allowed to obscure the wisdom of
Doll's view, that it may be unnecessary to await the isolation
and identification of a specific carcinogenic agent(s) before
doing something to halt the rapid increase in mortality and to
turn it into an even more rapid decline . . . the question arises
whether the combined weight of evidence is now so compelling as
to convince the tobacco industry itself that there may be some
connection between tobacco and cancer of the lung."
18. Some three years later Wynder, himself,
in a front page article in the BMJ on 5 January 1957 entitled
Towards a Solution of the Tobacco-Cancer Problem supported
the BMJ's comments setting out a blue print for action by the
tobacco companies. He concluded that animal experimentation had
demonstrated a definite relationship between the amount and duration
of tar applied to an animal and the total number of tumours and
the duration of the latent period before tumours became observable.
He gave his view that since both human and animal evidence indicated
that the risk of developing cancer was directly related to the
amount of tar exposure, filters that reduced tar yield should
be introduced. He further argued that regulations should be drawn
up specifying criteria for the amount of tar to be delivered in
the smoke of filter cigarettes and requiring the manufacturers
to state the effectiveness of the filter tips of their cigarettes.
HM GOVERNMENT'S
RESPONSE
19. In 1951 the Government's advisory body
the Standing Cancer and Radiotherapy Advisory Committee ("SCA(CR)"),
a subcommittee of the Central Health Services Council ("CHSC"),
reviewed the 1950 Doll and Hill study. They decided to bring the
issue to the Minister's attention. Over the following three years
the Committee kept the developing science under close review and
kept the Minister of Health informed.
20. On 12 February 1954 the Minister for
Health said in a statement to the House of Commons, having set
out the advice of the CHSC;
"I accept the Committee's view that the
statistical evidence points to smoking as a factor in lung cancer
but I would draw attention to the fact that there is so far no
firm evidence of the way in which smoking may cause lung cancer
or of the extent to which it does so. "
21. In May 1957, the MRC issued a report
that reviewed the then published epidemiological evidence and
the published mouse skin studies of Wynder and concluded that
the statistical evidence was very considerable and that thus far
no adequate explanation of all the statistical evidence had been
advanced except that of direct cause and effect, namely that smoking
was the principal factor in the causation of lung cancer. In the
House of Commons the Parliamentary Secretary to the Ministry of
Health presented the report to Parliament saying:
"The Government feel that it is right
to ensure that this latest authoritative opinion is brought effectively
to public notice, so that everyone may know the risks involved
in smoking"
22. By 1957 the epidemiological, animal
and pathology studies:
(a) provided an animal model that strongly
supported the epidemiological hypotheses set out above;
(b) showed that it was likely to be the tar
within the cigarette smoke that was causing the lung cancer;
(c) indicated that tar reduction through
the introduction of filter cigarettes and the selection of lower
tar yielding tobacco would probably reduce the incidence of lung
cancer amongst smokers.
23. The tobacco companies in response maintained
that:
(a) the mouse painting experiments produced
inconsistent results and did not support the epidemiological hypotheses;
(b) were not applicable to human carcinogenesis;
(c) there was not a consensus of medical
and scientific opinion to support the contention that the reduction
of the tar yield of cigarettes would lead to a reduction in the
incidence of lung cancer.
24. It seemed clear to me from everything
I saw during the course of the action that these reponses of the
tobacco companies were entirely about them defending the indefensible
and clutching on to ever finer straws.
THE CLAIMANT'S
CASE IN
RELATION TO
REDUCTION OF
TAR YIELD
25. The case of the Claimants was that,
in the light of the foregoing material, that the Tobacco companies
owed a duty of care to reduce the tar yield of its cigarettes
from around 1957. More specifically the Tobacco companies could
and should have achieved a reduction in tar yield to 10 mg by
1971. There were a number of steps the Tobacco companies could
have taken to achieve this. The introduction of filters would
have been a primary way of achieving that goal, as detailed by
Doll and Wynder (the latter suggested that good filters would
reduce the tar yield by some 40 per cent).
26. The Claimants contended that it was
incumbent upon the tobacco companies to adopt a maximum tar yield
for all cigarettes and reduced that tar yield progresively on
the basis that:
(a) The Tobacco companies in fact took steps
at all until the mid-1960s to reduce the tar yield of their cigarettes.
One of the principal defences advanced by the tobacco companies
was that they were properly engaged in the search to identify
carcinogens with a view to selective removal of such agents from
tobacco smoke. The Claimants' response is that whatever the value
of such research, it did not excuse the failure to act on the
material summarised above, and to reduce tar yields rapidly from
1957;
(b) From the documents it appeared clear
that there was no technical difficulty in reducing tar yield in
filter cigarettes to any given level although there was a dispute
as to whether they could have achieved 10mg by 1971;
(c) the Tobacco companies argued that they
placed a range of cigarettes on the market with different tar
yields and that it was up to each of their consumers to choose
which to smoke and that this was a sufficient discharge of their
duty of care. If an individual Claimant chose to smoke a cigarette
with a high tar yield then either he or she was voluntarily accepting
any risk of injury ensuing or was guilty of contributory negligence.
27. It is worth noting at this juncture
that in the mid-1950s the average tar yield per cigarette was
around 30mg with the great majority of cigarettes having tar levels
between 27-34 mg. A letter from Gallaher to Imperial in 1979 noted
that nearly 90 per cent of cigarettes sold in 1965 still contained
above 29mg tar. By 1971, although the tobacco companies were producing
cigarettes with a range of 4-26 mg, the vast majority of smokers
were still smoking cigarettes toward the top of this range. There
was in effect "no choice" at all until 1965 as the Second
Tobacco company conceded in its paper for the Tobacco Advisory
Council [TAC] dated 24 July 1979.
28. It was the Claimants' case that it was
not a sufficient discharge of the duty to minimise risk simply
to produce a range of cigarettes leaving high tar cigarettes on
the market. Each tobacco company had a duty to ensure that it
was minimising the risk of all its products, not just some of
them. Further, by in or about 1963 the Tobacco companies knew
or had reasonable grounds to suspect that nicotine caused smokers
to become dependent on smoking and that they needed to maintain
their addiction to avoid withdrawal symptoms. By in or about 1963
they knew or had reasonable grounds to suspect that people smoked
primarily to gain a dose of nicotine. Accordingly, to continue
to provide high tar cigarettes where high tar also meant high
nicotine yield would unreasonably deter smokers from switching
to lower yield cigarettes.
NICOTINE ADDICTION
29. From the early 1960s it was clear to
the tobacco industry in general that the main reason for people
smoking was because of the nicotine dose they received and it
became increasingly clear that nicotine was addictive. In cigarettes,
tar and nicotine yields are reasonably closely related so as the
tar yield reduces so generally does nicotine. Since the Tobacco
companies knew that people primarily smoked in order to receive
a nicotine dose and that nicotine might well be addictive, any
policy to reduce tar yield would have to take account of those
facts. It was the knowledge that people smoking primarily for
the nicotine, and the knowledge that this addicted them to smoking
should have led to the Tobacco companies taking steps to minimise
the risks to all consumers by reducing the tar levels in all their
brands.
30. The Tobacco companies submitted that
it was a matter of choice for individual smokers as to what they
should smoke and, therefore, insofar as they failed to smoke low
tar cigarettes and continued to smoke high tar cigarettes they
were at fault or consenting to the risk of contraction of lung
cancer. The industry view seems to be personified by the following
Questions and Answer strategy paper from the BAT Board:
"Q. A recent American study indicated
that low tar brands were less harmful to smokers. Why do you continue
to sell brands with high tar?
A. It is our policy to provide as wide
a choice as possible to the consumer in the products we offer.
In the light of all the knowledge available to the consumer the
final choice regarding the brand he buys must be his."
31. It was however, the Claimants' case
that no information was provided by the Tobacco companies or the
tobacco industry in general about the risks of smoking, the relationship
between tar yield and the risk of the contraction of lung cancer
and the fact that cigarette smoking was addictive. This point
is spelt out in an internal Gallaher memorandum dated December
1971, where it states:
"The only way to make any positive impact
on the news media is openly to admit to the low tar `safer' cigarette
aspect which would blatantly contravene the industry's current
combined attitude that it does not want to capitalise on the health
issue. This attitude is not reflected in the States or in Europe—."
32. While in its 1968 memorandum Imperial
suggested that the smoker required information as to tar yields
for an informed choice to be made, it did not provide the limited
information it identified as relevant. The approach was to seek
to make the Government responsible for the disclosure of product
information and disclosure of risk. The provision of limited information
printed on cigarette packets by voluntary agreement with the Government
only began in June 1971.
BREACH CAUSATION
33. The Claimants contended that the British
Tobacco Companies' failure to reduce the tar yield of their cigarettes
sufficiently had the consequence that each of them inhaled more
tar than would have been the case if they had complied with their
duty of care. And that this "excess" or "negligent"
tar had either caused their lung cancers, materially contributed
to the causation of their cancers or materially increased the
risk of their contracting lung cancer.
"The available studies indicate that
a reduction in the yield of smoke condensate of a cigarette and
a reduction in the amount that comes in contact with the lung
will be followed by a reduction of the risk of lung cancer."
34. Expert's in the field such as Sir Richard
Doll stated that the subsequent studies in the following decades
showed that this was not only accurate but that the relative risk
of lung cancer has reduced historically in the UK in broad proportion
to the reduction of tar yield in cigarettes as measured by standard
machine smoking methods and that the literature supports the proposition
that there is a relationship between the tar yield of the cigarettes
smoked and the risk of lung cancer that the smoker is exposed
to that is braodly proportionate, being probably a little less
than linear. It follows, from the above, that the literature supports
the view that if the Tobacco companies had reduced the tar yield
of their cigarettes smokers would have been at a significantly
lesser risk of contracting lung cancer. This provides one of the
evidential bases upon which the Court will be invited at trial
to infer material contribution.
NOCOTINE AND
COMPENSATORY SMOKING
35. Smokers primarily inhale tobacco smoke
for its nicotine content. The term "compensatory smoking"
is used to describe smokers' behaviour where the nicotine yield
of cigarettes is reduced. It has been suggested that to compensate
for the reduced nicotine, such smokes may inhale more deeply,
may cover the air holes in the cigarette paper, or may smoke more
cigarettes. There are a number of points to be made:
(a) the extent of compensatory smoking would
appear to be a direct function of the nicotine yield, the level
of nicotine the smoker is used to smoking, the rate of the reduction
of the nicotine level and the period since the reduction took
place;
(b) the 1965 patent application and the 1968
memorandum referred to above make it clear that the Tobacco companies
were well aware of compensatory smoking from the 1960s and as
a result they ensured that the nicotine levels were brought down
more slowly than tar levels;
(c) it is clear from the literature that
the process of compensatory smoking has not led to the same increase
in tar as against nicotine inhaled;
(d) even for nicotine it is thought that
compensation will only have operated as a partial phenomenon.
A review of all the evidence for compensation by P N Lee for the
Tobacco Research Council in 1979 concluded:
1. "Taken together, the evidence
seems to indicate that a smoker, when switching to a brand with
a lower nicotine yield, will tend to `compensate' mainly by altering
inhalation patterns but partly perhaps by a small increase in
consumption. This compensation however will only be partial so
that reduced nicotine yield does mean reduced intake to the smoker,
though the reduction will be relatively smaller than the reduction
in yield."
D. THE BRITISH
TOBACCO COMPANIES'
RESPONSE TO
THE MOUNTING
EVIDENCE
36. The response of the British Tobacco
Companies to the mounting evidence in the 1950s implicating cigarettes
in the cause of cancer and other illnesses was:
(i) to refuse to accept the evidence that
the relationship between smoking and lung cancer was causal and
to try and undermine the public messages regarding this link from
the health community;
(ii) to concentrate on attempting to isolate
and extract the carcinogens within tobacco;
(iii) only very reluctantly to start a programme
of tar reduction which the Claimants said was too little too late.
(i) Undermining the Health Message
37. in 1956 the British Tobacco Companies
and the other United Kingdom (UK) tobacco manufacturers set up
the Tobacco Manufacturers Standing Committee ("TMSC")
to represent the interests of the industry and to co-ordinate
policy. in a statement published in many of the national newspapers
in May 1956, the British Tobacco Companies and other tobacco companies,
wrote:
"The evidence on the possible relationship
of lung cancer and smoking is conflicting and very incomplete:
much more research is needed before firm conclusions can be drawn.—Quite
apart from our own chemical research into the constituents of
tobacco and tobacco smoke we have assisted and will continue to
assist research in every way we can; and we make this statement
with a full sense of our duty to the public. The suggestion that
smoking may be a contributory cause of lung cancer continues to
be based mainly on certain statistical inquiries. Statistics by
themselves, however, can never constitute proof of a cause and
effect relationship. We have closely followed every phase of statistical
and medical research on this subject in this country, and in the
United States, and elsewhere; and we think it right at this time
to emphasise that:
(a) Only a small proportion of smokers
contract the disease; and the disease also occurs among non-smokers.
(b) The incidence of the disease per head
of the population appears to be much greater in towns than in
rural areas; but there is relatively little difference in the
amounts smoked by town and country dweller's respectively.
(c) The variations in the incidence of the
disease in different countries appear to bear little relation
to the variations in tobacco consumption in those countries.
(d) The British Empire Cancer Campaign has
reported that experiments in a number of research institutions
to test whether tobacco smoke produced cancer in retain animals
have given negative results . . . Tobacco is a great boon to many
millions of people in this country and throughout the world .
."
38. The tobacco manufacturers made great
play of the fact that they had paid the sum of £250,000 to
the MRC for research following the Minister's statement in 1954.
However, this sum can be compared with the fact that within five
years of making this payment the advertising budget of the tobacco
companies (principally the British Tobacco Companies) had increased
some five fold to £11 million a year.
39. The note of a meeting that took place
six years following their public statement (1962) showed how little
the British Tobacco Companies' position had moved in the intervening
period. The meeting took place between Mr John Partridge, who
was at the time Chairman of the TMSC and who became Chairman of
the Imperial Tobacco at around this time, and Mr Todd, who by
this time was Director of Tobacco Research Council ["TRC"]
(which had primarily taken over the research functions of the
TMSC), and officials from the Board of Trade. The officials' note
says that Mr Partridge told them that the RCP report, Smoking
and Health:
"was likely to prove when more research
had been done a great oversimplification and an embarrassment
to those who had too readily accepted its conclusions". The
note went on to record:
"The industry still felt quite convinced
that the case against cigarette smoking was not made out . . .
There were three areas of research:
(i) Individual susceptibility.
(ii) Atmospheric pollution.
(iii) Continued search for the causative agent,
if any, in cigarette smoke. This work had not been pressed as
fast as it should have been: it was an unpromising line for the
postgraduate student and there was difficulty in getting men to
do the work. The TMSC were therefore setting up a research team
themselves to do the work.
40. In that meeting the civil servants put
the proposition to Mr Partridge that if the evidence pointed to
heavy smoking carrying an additional risk young people should
be warned of it. The note of the meeting described how:
"Mr Partridge disputed that view . . . he
suggested that a deliberate campaign based on fear could set up
a powerful reaction by spreading nervous tension, especially between
children and their (smoking) parents. Create a cancer phobia and
you don't know what you are doing".
41. In the same month Mr Partridge appeared
on BBC TV's Panorama programme where he took a similar line. On
being asked whether he accepted the RCP report and the Government's
acceptance of the "authoritative and crushing causal connection
between lung cancer and smoking" he replied:
"we do not accept the sweeping assertions
in the report, incriminating smoking. I do not accept what the
government has said. There are too many gaps in knowledge, too
many inconsistencies in the evidence. One of those gaps and a
pretty yawning and smelly gap at that, is air pollution. "
Finally, he commented:
"I happen to think that neither tobacco,
nor alcohol are harmful in moderation."
(ii) Extracting Carcinogens
42. In their May 1956 statement, described
in detail in paragraph 20 above, the UK tobacco companies made
it clear that the isolation of carcinogens was a priority for
them.
43. In 1960 the TMSC decided to set up its
own research facilities in Harrogate, which were opened in September
1962. Through the TMSC the British Tobacco Companies and other
manufacturers pooled their research and knowledge in relation
to cigarette safety and design. At Harrogate they replicated,
on a grand scale the experiments on mouse scale carcinogenicity,
in an attempt to ascertain the carcinogenic properties of tar,
reported by Wynder some nine years earlier and repeated in the
US by researchers for Liggett and Myers some seven years earlier.
44. The TMSC had close working relationships
with the Council for Tobacco Research [CTR] in the USA, as did
its successor organisations. It was never fully clear whether
the TMSC was aware of the Liggett and Myers research. It is assumed
that they must have been so aware as the research was in the public
domain by 1960.
45. It is the Claimants' case that the primary
purpose of such research was to isolate the carcinogens and remove
them from tobacco. At a British American Tobacco [BAT] research
conference in Southampton 1962 Sir Charles Ellis of BAT explained
the research policy of TMSC to, inter alia:
(a) carry out further bio-assays on mice
at its Harrogate laboratories with a view to either demonstrating
that fresh smoke condensate had less biological effect than old
smoke condensate or finding the group of substances responsible
for it and getting rid of them;
(b) fund work looking at the hypothesis that
those who contract lung cancer were especially susceptible;
(c) support epidemiological studies to show
an association between lung cancer and the environment;
(d) support work to elucidate the effects
of nicotine as a beneficial drug;
(e) support work looking at viruses that
could produce cancers.
Practical research and development as to methods
of tar yield reductions were not mentioned.
46. By 1965 it was clear to the TMSC from
the results of the Harrogate experiments that it was going to
be extremely difficult to isolate the carcinogens. However, the
experiments had confirmed what Wynder had found 12 years earlier.
In a review note by Imperial of the results, it says:
"We can then tell them that the extremely
careful and thorough work by the Harrogate scientists and staff
has pointed the way for work in the Research Organisations of
the Tobacco Manufacturers, as a result of which it now seems likely
that we should be able to reduce the `tar' content of cigarette
smoke quite substantially, while still producing an acceptable
smoke for the public."
47. It appeared from the Defences that it
was only once the British Tobacco Companies had replicated Wynder's
work through the TMSC that they began to consider acting upon
the results of that work. Imperial claim that they began product
modification research in 1964 following their receipt of preliminary
results of the mouse painting studies from Harrogate and began
modifications in 1966.
48. The research carried on for a further
dozen years before the Harrogate laboratories were closed down
on the basis that their search had proved fruitless and the research
facilities were eventually sold by the tobacco industry, it being
said:
"Imperial have become very weary by the
fact that results of such research have been frequently and extensively
used by the Industry's opponents. He, Dr Bentley, was now under
strict orders to enter into no additional commitments over and
above the run-down of the former TRC activities. "].
(iii) Reducing Tar Levels
49. As described above, it was not until
1966 that the British Tobacco Companies took any active steps
to reduce tar levels. In a 1968 note for the newly appointed Scientific
Advisory Committee, Imperial wrote saying:
"These recommendations [ie from the RCP
1962 report]. . . had an important influence on the first experimental
programmes for the TRC Harrogate laboratories. . . Taken together,
the RCP recommendations and our experimental results have obliged
Imperial to assume that there are now sufficient grounds to justify
tar reduction in our brands; Gallaher and Carreras have confirmed
their agreement with this view. . . Accordingly each of us has
reduced the `tar' delivery of important filter cigarette brands
during the last 18 months."
50. I note that Imperial appear in this
document to be saying that two events led it to the conclusion
that it should start reducing tar yield, ie
(a) the RCP recommendations;
(b) the Harrogate replication of the Wynder
studies.
51. As far as (a) is concerned, having reviewed
all the evidence regarding the link between smoking and cancer
the RCP had proposed three "Preventive Measures", the
first of which was the removal of harmful substances through the
filtration of cigarettes and the modification of tobacco.
52. The RCP report and recommendations were
saying nothing more than the statements by Doll and Wynder and
then the MRC in the period leading up to 1957. Indeed the TMSC
statement following the publication of the RCP report in 1962
said it did not progress matters from the MRC statement in 1957.
It is the Claimants' case that there was ample scientific evidence
upon which the British Tobacco Companies should have acted by
1957; and that any uncertainties that existed at that time were
still present in 1962, as witnessed by the RCP's recommendation
that "firm claims" regarding the health effects of lower
tar cigarettes should not be made.
53. As far as (b) is concerned, waiting
for the Harrogate studies begs the question: why, if the British
Tobacco Companies had felt that Wynder's work needed to be replicated
to give them the assurance they wanted, had they waited until
1962 to start those experiments where the results were not finalised
until 1965? The TRC said to the Minister of Health on producing
their results that they had been concerned about the scale of
Wynder's experiments, which had left a number of questions unanswered.
If that was the case why had they not taken the course adopted
by Liggett and Myers, in the USA, and had them replicated, in
the early 1950s, ie 10 years earlier?
54. Finally, in relation to the 1968 Imperial
memorandum it is suggested that Carreras had just agreed to take
steps to reduce tar. However, it can be seen this was not the
case from its statement on 5 April 1962:
"The Report [ie 1962 RCP report] states
that:
`the harmful effects of cigarette smoking might
be reduced by efficient filters.'
Our group has been much concerned with research
into tobacco chemistry and filtration and our policy is now to
extend considerably our work in this field. The modern type of
filter cigarette which we manufacture is a new product introduced
over the last few years.
Meanwhile although there is no proven case
that smoking causes lung cancer, cognizance must be taken of the
Royal College of Physicians' Report and because of our belief
in filter cigarettes, which is borne out by the increasing World-wide
preference for them, we intend in future to concentrate even more
fully on the production of filter cigarettes for the United Kingdom
market."
It would appear that Carreras/Rothmans were
prepared to act from 1962, rather than waiting for the Harrogate
results.
THE RATE
OF TAR
REDUCTION
55. The following examples illustrate the
British Tobacco Companies' approach to tar reduction:
(a) even after they had accepted the argument
for reducing tar levels, in the mid-1960's, the British Tobacco
Companies with other tobacco companies, sought to ensure they
were not forced into reducing tar levels more speedily than suited
their commercial interests;
(b) an internal industry memo in 1979 referred
to a meeting of the tobacco companies with Lord Hunter the Chairman
of the Independent Scientific Committee on Smoking and Health
(the first of the Government advisory committees). The memorandum
says:
"They still feel Gallaher is in favour
of total capitulation to Hunter, of course this the industry cannot
tolerate. The TAC plans to support the position stated by Herbert
Bentley of ITG [Imperial Tobacco] as follows:
56. In 1984 there was a similar meeting
with Dr P Froggatt, the expert who had taken over Lord Hunter's
position as Chairman of the advisory committee. The note of the
meeting of the industry representatives that preceded that with
Dr Froggatt (at which the British Tobacco Companies were represented),
says:
"In the ISC 3rd report [ie the advisory
committee's report] it was suggested that further research was
necessary on `other noxia' which are found in the vapour phase
of smoke.
Detailed discussions led to the conclusion
that in respect of virtually every component of "other noxia"
cited in the ISC 3rd report, past research over the last 20-30
years suggests that there is little scientific opportunity to
identify and then selectively eliminate any specific component
that could be unequivocally linked with the alleged smoking associated
diseases. It was felt, however, that if this view were to be communicated
as such to the ISC the possible consequences could be:
Since neither of the latter possibilities
would be welcome to the industry, it was felt that some proactive
stance must be argued,—"
57. A statement of BAT's Chairman A D McCormick,
at the company's 1962 research conference, exemplifies the tobacco
industry's concern that to produce safer cigarettes implied that
the others were unsafe with consequences for sales. The head of
research, Dr Green, asked the company to consider manufacturing
cigarettes that conformed with published health information. Mr
McCormick said:
"if it did so it would be admitting that
some of its products already on the market might be harmful. This
would create a difficult public relations situation."
The British Tobacco Companies' Knowledge of the
Significance of Tar Reduction
58. In the 1920's and 30's it was suggested
that nicotine was responsible for the compulsive use of tobacco
products (Armstrong Jones Tobacco, its use and abuse from the
nervous and mental aspects Practitioner 1927: 118: 6-19; Dorsey
Control of the Tobacco Habit Ann Int Med 1936: 10: 628-31
48. In 1963 Knapp et al in a paper entitled Addictive
aspects of heavy cigarette smoking (Am J Psychiat 119 966-72)
demonstrated withdrawal effects with blind substitution of low
nicotine cigarettes.
59. In a May 1963 report called The fate
of Nicotine in the Body produced by Batelle for BAT it was
stated that:
"There is increasing evidence that nicotine
is the key factor in controlling, through the central nervous
system, a number of the beneficial effects of tobacco smoke, including
its action in the presence of stress situations. In addition the
alkaloid (nicotine) appears to be intimately connected with the
phenomena of tobacco habituation (tolerance) and/or addiction".
60. It is the Claimants' case that the work
of the Batelle group was available in 1963 to the Executive Commitee
of the TRC. Senior officers of the British Tobacco Companies were
members of that committee. This report and the Batelle research
exploring the pharmacokinetics of nicotine was sent in or about
June 1963 to the Tobacco Research Council where it was evaluated
by a team of TRC medical experts and passed on to the UK companies
through their Executive Committee representatives on the TRC.
It follows that the British Tobacco Companies had actual knowledge
of this report.
61. Imperial has admitted that it had knowledge
of this type of research in its defences in these actions, albeit
that it has made no admission as to the date of its knowledge
or its source. Hergall's pleaded case is that it was aware by
in or about 1963 that some researchers suggested that nicotine
was addictive or could cause dependence, but rely on the US Surgeon
General's conclusion in his 1964 report that smoking was not an
addiction but a habituation. However, the US Surgeon General's
conclusion was not based on the Batelle research. The report of
the Batelle research was subsequently suppressed to prevent public
disclosure.
62. The importance of nicotine was clearly
recognised so that, for example, in a patent specification by
the Imperial Tobacco, taken out in 1965, looking at enhancing
the level of nicotine in cigarettes, they stated:
"Nicotine in the smoke is thought to contribute
substantially to the satisfaction traditionally associated with
smoking and it is undesirable to remove it. It is thought that
about 1.5 mg of nicotine in an average cigarette is a desirable
quantity."
The length of time it would have taken Imperial
to develop a process for increasing nicotine content by adding
nicotine salt to tobacco, prior to the patent application, suggests
that the industry may have been aware of the significance of consumers
obtaining their full dose of nicotine even before 1963.
63. In a memorandum in 1968 Imperial made
clear not only their understanding of the importance of the nicotine
level in the cigarette but also that reducing the level may lead
to smokers compensating:
"It is not technically difficult to reduce
the `tar' yield of a filter cigarette—filter plugs can be
made as efficient as may be desired if limitations imposed by
consumer acceptance are disregarded. In a situation where smokers
are free to choose, however, regard must be paid to maintaining
flavour and `satifisaction' in low `tar' brands. If that is not
done, it is possible that:
In Imperial's experience the most important determinant
of flavour, `satisfaction' and consumer acceptability in UK filter
cigarettes is an adequate deliver of nicotine to the smoker. . . .A
number of techniques are available to reduce `tar' delivery in
filter cigarettes without reducing nicotine delivery pro rata."
64. In a Gallaher memo dated 30 November
1971, it was stated:
"If . . .the active principles lie in the
vapour phase then, because of evidence that smokers do compensate
for nicotine, we can expect health statistics to get worse, either
because more cigarettes will be smoked or they will be smoked
in a different manner. . . .If one reduces PM [tar] one must reduce
nicotine, giving rise to the practical and legal problems of nicotine
addiction.".
65. In 1973 Hall and Morrison, two scientists
working at the TRC laboratories in Harrogate published a paper
Tobacco Smoking, Nicotine Dependence and stress [Nature
243: 199] which accepted the basic premise that many smokers become
dependent on the nicotine content of tobacco smoke.
66. In a letter from Gallaher to Imperial,
in 1979, the problem of dependence on the nicotine content of
high tar yielding cigarettes was recognised:
"It is evident . . .that a third of all
cigarette smokers (irrespective of tar category) are interested
in trying a cigarette that is thought to be less hazardous. The
question remains why smokers do not change to a lower tar cigarette?.
. . .a large number of trialists do not remain with the product.
. . .Among those smokers who have tried and rejected a low tar
product, the reason usually given for rejection is its lack of
satisfaction and taste."
E. THE STATEMENTS
MADE BY
THE BRITISH
TOBACCO COMPANIES
AND OTHER
TOBACCO COMPANIES
67. I set out a number of statements made
by the British Tobacco Companies and the other tobacco companies,
publicised in the British media:
(a) the UK tobacco companies issued a statement
saying: "The link between smoking and the disease is suggested
only by statistics. There may be other factors—pollution
of the atmosphere for example." (Daily Mirror, 13 February
1954);
(b) "Sir Robert Sinclair, Chairman of
the Imperial Tobacco Company in a statement . . . on smoking and
lung cancer, says that nothing in the way of proof in this matter
has emerged during the past year". (The Times, 25 February
1954);
(c) a statement by leading tobacco manufacturers
(including Gallaher and Imperial) said "The evidence on the
possible relationship of lung cancer and smoking is conflicting
and very incomplete". (The Times, 8 May 1956);
(d) "The presence in tobacco of dangerous
quantities of two suggested cancer producing substances is discounted,
and the statistical validity of estimates linking lung cancer
with different forms and levels of smoking is questioned in the
first annual report of the Tobacco Manufacturers Standing Committee
issued yesterday". (The Times, 18 June 1957);
(e) "The Tobacco Manufacturers Standing
Committee stated yesterday, after considering the statements by
the Minister of Health and the Medical Research Council, that
it had not been established with any certainty and to what extent
there might be a causal connection between smoking and cancer
of the lung". (The Times, 28 June 1957);
(f) the Tobacco Manufacturers Standing Committee
gives "six grounds for doubting whether smoking is a significant
factor in lung cancer". (The Times, 13 December 1957);
(g) the Tobacco Manufacturers replied by
pointing out that the report [ie the RCP report] added little
to the 1957 investigation, and did not fully take into account
the part played by air pollution. (Daily Mail, 8 March 1962);
(h) report of TMSC statement "There
is growing evidence, says the Committee, that smoking has real
value to smokers by stimulating their brains when they are tired,
reducing tension and keeping blood pressure down." (Daily
Herald, 8 March 1962);
(i) Gallaher report: Do you agree that low
tar/nicotine cigarettes are safer? We do not make judgments about
medical matters. (Sunday Times, 15 April 1973);
(j) Dr Wakeham, Vice-President of Philip
Morris said:
"You must be trying to get me to admit that
smoking is harmful. Anything can be considered harmful. Applesauce
is harmful if you get too much of it.
Q. I don't think many people are dying from
applesauce.
Dr Wakeham. They're not eating that much,
I think that if the company as a whole believed cigarettes were
really harmful, we would be out of business. We're a very moralistic
company." ("Death in the West", Thames TV, 1976);
(k) report of Alan Long, President of BAT
subsidiary, saying:
"The medical evidence, as far as I am aware,
is of a statistical nature and it is, as you know, the industry's
view that no evidence has been produced to establish a causal
relationship between smoking and any of the diseases with which
it is associated." (BBC TV's Panorama "A Dying Industry",
14 April 1980);
(l) letter by Richard Duncan from BAT subsidiary
saying "The company does not believe that cigarette smoking
is harmful to health." (Sunday Times, 3 May 1990);
(m) "Chief executives of seven American
tobacco companies launched a counter-attack on the anti-smoking
lobby yesterday rejecting the allegation that they "spike"
cigarettes with extra nicotine. They denied that nicotine is addictive,
contradicting an earlier report by the Surgeon General" (The
Times, 15 April 1994);
(n) "Mr Ian Birks, head of corporate
affairs of Gallaher Group (UK) told the committee that smoking
was a habit which people could take up or give up. It was not
an addiction, he insisted, . . . Mr Birks did not accept that
smoking caused lung cancer, bronchitis and heart disease."
(Irish Examiner, 10 July 1998);
Failing to Accept Smoking/Cancer Link
68. I have set out above a number of instances
where the industry have publicly rejected the findings of bodies
which have confirmed that the smoking/lung cancer link is causal.
It was clear to me on reviewing the documents that this was a
public relations exercise rather than a serious attempt to assess
the strength of the evidence independently. Examples of this are:
(a) in 1958, Dr Bentley, a leading research
scientist for the Imperial, accompanied two other British tobacco
experts on a trip to meet a number of scientists from the US tobacco
industry and other independent experts. In their report of the
meeting to the Imperial they said:
"with one exception . . . the individuals
whom we met believed that smoking causes lung cancer."
(b) the public position adopted by the British
Tobacco Companies is difficult to reconcile with the records of
internal discussions. It will be recollected that in 1953 the
tobacco companies asked the Government to consider the statistical
critique of the Doll and Hill studies by Mr Todd, who at the time
was an Imperial employee, and that a Panel of experts was set
up to consider his comments and advise the Minister. By the early
1960s Mr Todd had become the Director of the TRC. He gave a speech
to tobacco company executives, when he made a number of interesting
comments, opening with the words:
"We all like to think of ourselves as
men who have the moral strength to face facts, even if they are
unpleasant facts."
He went on to review the statistical evidence
regarding the smoking/lung cancer association:
"It is quite obvious that the simplest
explanation of the association between smoking and lung cancer
is that smoking causes lung cancer."
He went on to describe what must be the characteristics
of what he called the "Unidentified Common Factor" if
this association was not truly causal and that there was some
other such cause. He concluded:
"is it inherently likely that an Unidentified
Common factor with all these very detailed characteristics exists,
waiting to be discovered as a result of some lucky experiment?
Speaking in terms of probability, as a statistician should, all
I can say is that it is most improbable that such an Unidentified
Common factor Exists."
He then went on to review what had happened
in the tobacco and health controversy over the previous few years:
"Back in 1953 I was very disappointed
by the report of the Panel [ie the Government Advisory Panel set
up to consider Todd's arguments, and the strength of the Doll
and Hill work] but I soon came to see that the Panel had reached
the right conclusion. . . . The report by the Royal College of
Physicians initiated a new situation in Britain. As a result,
it became extremely unwise for the tobacco industry in this country
to continue to assert that it had not been proved that smoking
caused lung cancer. If the manufacturers in this country were
now to take this line publicly, their views would be written off,
even more than before, as dictated solely by their commercial
interests. The manufacturers would be regarded as being dangerously
irresponsible and all connected with the industry would suffer
serious loss of respect in government, medical and public opinion."
It is surprising the British Tobacco Companies,
on receiving this advice from the head of research of the joint
industry body, did not make such advice available.
(c) in 1970 the results of experiments where
beagles smoked cigarettes in laboratory experiments were made
public showing a high level of lung cancers. In a memorandum from
the General Manager of Research for Gallaher Ltd to their Managing
Director reviewing the results he said:
". . . we believe that the Auerbach work
proves beyond reasonable doubt that frest whole cigarette smoke
is carcinogenic to dog lungs and therefore it is highly likely
that it is carcinogenic to human lungs.
. . . the research would appear to remove the
controversy regarding the causation of the majority of human lung
cancers."
(d) in a memorandum by Dr S J Green, the
head of research at BAT, in 1978 he said:
"There has been no change in the scientific
basis for the case against smoking. Additional evidence of smoke
dose-related incidence of some diseases associated with smoking
has been published. But generally this has long ceased to be an
area for scientific controversy."
(e) the reason for at least some companies
refusing to accept publicly what they may have been accepting
privately is suggested by this memoranda, in 1976 from Dr Green
of BAT who said:
"The public position of the tobacco companies
with respect to causal explanations of the association of cigarette
smoking and diseases is dominated by legal considerations. In
the ultimate companies wish to be able to dispute that a particular
product was a cause of injury to a particular person. By repudiation
of a causal role for cigarette smoking in general they hope to
avoid liability in particular cases."
Sowing Seeds of Doubt
69. The rationale behind the strategy being
adopted by the British Tobacco Companies and the other tobacco
companies is, perhaps, indicated by a statement in 1972 by the
President of the USA's Tobacco Institute ["TI"]:
"[for nearly 20 years this industry has employed
a single strategy to defend itself on three fronts—litigation,
politics and public opinion. While the strategy was brilliantly
conceived and executed over the years helping us to win important
battles, it is only fair to say that it is not—nor was it
intended to be—a vehicle for victory. On the contrary, it
has always been a holding strategy, consisting of:
In the cigarette controversy, the public—especially
those who are present and potential supporters—must perceive
understand and believe in evidence to sustain their opinions that
smoking may not be the causal factor."
70. Although this statement by the TI's
President was clearly referring to the US tobacco industry there
can be little doubt that the UK industry was adopting a very similar
strategy as seen above.
71. The failure of the tobacco industry
to acknowledge the scientific evidence for the link between smoking
and health is not just of historic relevance. In the report of
the Scientific Committee on Tobacco and Health, the UK Government
advisory committee, published on 11 March 1998, the authors' comment:
"The Government should require of the tobacco
industry:
(a) reasonable standards in the assessment
of evidence relating to the health effects of the products it
sells;
(b) acceptance that smoking is a major cause
of premature death; and
(c) normal standards of disclosure of the nature
and magnitude of the hazards of smoking to their consumers, comparable
to that expected from other manufacturers of consumer products.
Independently of specific governmental regulations,
tobacco manufacturers should comply with these requirements."];
Smoking and Addiction
72. The British Tobacco Companies argued
in their Defences that smoking is not addictive. There are many
documents to show that tobacco companies, including the British
Tobacco Companies, have been aware of the addictive properties
of nicotine for 35-40 years and have concealed that knowledge
from their consumers and from the medical community. For example,
the work carried out by Batelle on nicotine, described above was
made available to the British Tobacco Companies, by BAT in 1963.
Despite this almost certainly being the most extensive work on
nicotine that had been carried out at that time, it was not released
to the scientific community or the wider public. The British Tobacco
Companies quoted in their Defences the fact that the US Surgeon
General came to the view the following year, ie in his 1964 report,
that smoking was a habit and not addictive. Yet the British Tobacco
Companies were party to the withholding of the Batelle report
from the Surgeon General and, to quote his view, therefore lies
ill in their mouths.
73. In the USA the first of the so-called
Medicaid claims, whereby the individual states were suing the
tobacco companies for the costs of treating smoking related diseases
was heard. In that case a Special Master, Mark W Gehan, was appointed
to review the claim of privilege by the British Tobacco Companies
in relation to a large number of documents. In considering the
position he looked at various issues including the evidence as
to what the companies knew about nicotine and addiction. His review
was made publicly available on 7 March 1998. In it he says:
"[The] Claimants have also demonstrated
to a degree of unrebutted probability that the defendants were aware of the addictive or habit forming nature
of nicotine, that the defendants experimented with
`dosages' of nicotine and that the defendants did
not reveal to their consumers the extent of their knowledge. (p
116)"
At another point he says:
"I find that the foregoing documents
reasonably lead to the conclusion that the defendants internally discussed the addictive qualities (or arguably addictive
qualities) of smoking while at the same time they intentionally
denied or minimized this health risk to the public."
74. The basis for the Special Master's decision
arose from the review of a vast number of documents. To quote
four:
(a) in a Tobacco Institute [USA] document
in 1980 it said:
"Shook Hardy [US tobacco company lawyers]
reminds us, I'm told, that the entire matter of addiction is the
most potent weapon a prosecuting attorney can have in a lung cancer/cigarette
case. We can't defend continued smoking as `free choice' if a
person was addicted. (p 79)"
(b) in 1959 a BAT memorandum suggested that
if the nicotine level was lowered too far:
"[it] might end in destroying the nicotine
habit in a large number of consumers and prevent it being acquired
by new smokers. (p 69)"
(c) in a 1969 Philip Morris memorandum it
said:
"I would be more cautious in using the
pharmo-medical model—do we really want to tout cigarette
smoke as a drug? It is of course but there are dangerous FDA [Federal
Drug Administration] implications to having such conceptualisation
go beyond these walls. (p 67)"
(d) in a 1978 Brown and Williamson [US subsidiary
of BAT] document it says:
"very few consumers are aware of the
effects of nicotine, ie its addictive nature and that nicotine
is a poison."
75. It may be argued that these documents
give an incomplete picture of what was actually happening. The
Special Master said in relation to this:
"In response to the evidence of defendants' internal knowledge that nicotine is an addictive
drug, the defendants' argue that Claimants have
`cherry picked' from defendants' documents. I conclude,
however, that this response does not adequately account for the
more than 80 documents, spanning more than 40 years, presented
by the Claimants. I also note that the defendents have not disputed the content of these documents. It is also noteworthy that these documents were written primarily by senior scientists and research officials at Defendant companies. Finally, the defendants have failed to present evidence from their own internal files to support their allegation that Claimants' selection is unrepresentative of defendants' actual knowledge
regarding addiction. (p 84)"
Research
75a. We have already seen how the interests
of the British Tobacco Companies, when it came to research was
primarily to disprove the link, and then to try and extract the
carcinogens from within tobacco. Any effort to try and minimise
risk by reducing tar levels seems to have come a very poor third
in the British Tobacco Companies' list of research priorities.
76. The commitment of Imperial to their
responsibilities to undertake research and publish their findings
seems to have dramatically diminished when their early objectives
were found to be baseless. A Philip Morris memorandum in 1978
describes a meeting to consider the future of the UK industry
body, the Tobacco Research Committee in 1978. The meeting was
between Philip Morris, BAT, Carreras-Rothmans, Imperial and Gallaher.
These companies are responsible for close to 100 per cent of the
manufactured cigarettes in the UK and directly or through subsidiaries
for around 60 per cent of the manufactured cigarettes in the USA.
The memorandum reports that:
"Imperial have become very weary by the
fact that results of such research have been frequently and extensively
used by the Industry's opponents. He, Dr Bentley, was now under
strict orders to enter into no additional commitments over and
above the run-down of the former TRC activities.
Dr Derek Wilson on behalf of Gallaher's, who
was accompanied by Dr Field, took the opposite view. In a very
rambling talk which sounded more like a PR statement than a statement
of intention, he expressed his company's view in the sense that
Industry was morally obliged to conduct research and they felt
that a programme similar to the former TRC programme should be
supported.
On behalf of Philip Morris, I joined ranks with
Imperial and BAT.
It was agreed, with reluctance on behalf of Gallaher's
and Carreras-Rothmans, to re-appoint sub-committees only when
and if needed."
77. We have seen how the tobacco companies
failed to publish critical new research into nicotine and addiction.
We have also seen how the companies' researchers internally adopted
a far more realistic position regarding the strength of the evidence
facing the industry than was ever publicly accepted.
F. CONCLUSIONS
78. Standing back from the case and trying
to be as objective as I can I would make the following points
in conclusion:
(a) The British Tobacco Companies responded
extremely slowly to the scientific evidence that emerged in the
early 1950s to show their products were so harmful. They put all
their efforts in trying to refute the evidence rather than making
a full assessment and responding by trying to make their products
safer.
(b) In that period between 1950 and 1965
they were involved in a campaign of disinformation to try and
protect their markets. However, from that time, with the odd exception
they have taken a more "dead bat approach" refusing
to make any comments about the scientific evidence. That is clearly
far better than what happened in the US where the companies continued
to pursue the "misinformation route" for decades after
this time. However, I fully agree with the 1998 Health Committee
view that the British Companies should be urged to accept, in
the way that Philip Morris now have, the scientific evidence re
the health risks and smoking and the addictive nature of cigarettes.
(c) The British Tobacco Companies having
tried to produce research through the TMSC and TRC that would
make a safer cigarette in a way that would not impact on their
markets clearly decided not only to give up in the late 1970s
but also realised that the pressure was in many ways off and that
an easy equilibrium had been reached between them and the regulators.
(d) The British Tobacco Companies have benefited
from there being disagreements in the scientific community as
to exactly what they should do to reduce the health risks. The
only options that I am aware of were and are:
(i) take cigarettes off the market—not
a politically viable option—no-one wants to enter a prohibition
phase such as seen in the US with the prohibition of alcohol;
(ii) reduce tar levels—this was our case,
and I remain clear that the British Tobacco Companies could have
taken a leading role in achieving this which would have led to
a great reduction in the level of lung cancers. However, it is
also clear that once the tar levels reach those of today, compensatory
smoking greatly reduce the benefits of this once the tar level
is down to the 10 mg sort of level;
(iii) reduce nicotine levels—there is disagreement
between the British expert Russell and Jarvis and their counterparts
in the US Benowitz and Henningfield. The former have, since the
early 1970s argued for maintaining the nicotine levels and reducing
the tar. The latter have argued for steadily reducing the nicotine
with the reducing tar. Having spent the last seven years reviewing
the position I would stand strongly in the US expert camp. I take
the view that a steadily reducing nicotine level, albeit a major
problem for todays' smokers would greatly benefit the new smoker
and is the only way of trying to have a real impact on the cigarette
market in the long term. The Tobacco Companies have undoubtedly
benefited from the uncertainties resulting from these disagreements.
79. It is a great shame that the decision
made by Mr Justice Wright meant that the Court case never went
to a full trial. In the USA the prospect of a full trial has forced
their industry into settling claims to the tune of $250 billion.
In this country the industry, protected by the more conservative
British judiciary, have probably escaped ever being put into the
witness box and will probably never have to pay out a penny for
all the suffering caused by their products.
80. Having said all of this I need also
to say that much of this evidence was before Mr Justice Wright
at the limitation hearing and he was totally unmoved by it. I
take the view it is a powerful indictment of what they have been
up to over the last 50 years. The Judge clearly begged to differ.
November 1999
|
