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Entirely Supported By Tax-Deductible Contributions
"DALEY" CLASS ACTION LAW SUIT IN CHICAGO CHALLENGES CONSTITUTIONALITY OF PROPOSED DEAL
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CLASS ACTION COMPLAINT
Table of Contents
I. GENERAL ALLEGATIONS
A. SUMMARY OF SUIT
B. PARTIES
1.Plaintiffs
3.Defendants
II.NATURE OF DEFENDANTS' WRONGFUL CONDUCT AND CONSPIRACY
A. IN GENERAL
B. PRE-CONSPIRACY ADVERTISING AND PROMOTIONAL
ACTIVITIES: FALSE CLAIMS OF HEALTH AND SAFETY
C. THE 1953 "BIG SCARE" AND INDUSTRY RESPONSE
1. Creation of the Tobacco Industry Research
Committee and the Tobacco Institute
2.The Tobacco Institute: A Front for the Tobacco
Cartel
D. SUPPRESSION AND CONCEALMENT OF INDUSTRY-SPONSORED
RESEARCH
1.Role of CTR as a "Front"
2.The Example of Dr. Homburger
3.CTR Special Projects Division
E. SUPPRESSION AND CONCEALMENT OF INTERNAL BIOLOGICAL
RESEARCH
1."Mouse House Massacre"
2.The "Safer Cigarette"
a. Liggett's "Safer Cigarette:" XA
b. Liggett, James Mold and Suppression of the XA Research
c. Liggett's "Safer Cigarette" Patent
d. Suppression of Liggett's "Safer" Cigarette
F. INDUSTRY RESEARCH ON NICOTINE AND KNOWLEDGE THAT
TOBACCO PRODUCTS ARE HARMFUL
1.History of Industry Knowledge That Smoking is Harmful
2.Industry Knowledge that Nicotine Is Addictive
3. Long-Standing Industry Awareness of the Difficul
ty Smokers Have in Quitting Underscores the Tobacco Companies' Knowledge
of Addiction
4.Suppression and Concealment of Research on Nicotine Addiction
5. The Tobacco Companies Control and Manipulation of Nicotine
Levels
6.Additional Evidence of Nicotine Manipulation
a. Manipulation of Nicotine Content: Y-1
b. Manipulation of Nicotine Delivery
c. Manipulation of Nicotine Delivery in Smokeless Tobacco
G. MARKETING
1.Targeting Children
a. The Use of Marketing to Attract Children and Adolescents
b. The Success of the Strategy
c. False Assurances
2.Use of Appealing Images
3.Light Cigarettes: A Marketing Hoax
4. Smokeless Tobacco Products
H. THE CONTINUING CONSPIRACY
1.The "Gentlemen's Agreement"
2. Other Evidence of the Continuing Conspiracy
I. THE HUMAN TOLL OF TOBACCO USE
1.The Harmful and Addictive Nature of Nicotine
2.The Health Effects of Smoking
3. The Health Effects of Smokeless Tobacco Products
4.The Health Effects of Second Hand Smoke
5. The Health Effects of Smoking on Women, Children and
Developing Fetuses
J. TOLLING OF ALL STATUTES OF LIMITATION
III. CLASS ACTION ALLEGATIONS
A. PROPOSED CLASS
B. CLASS ACTION LAW
C. TOBACCO CLASS MEETS REQUIREMENTS FOR CLASS
CERTIFICATION
IV.CLAIMS FOR RELIEF
COUNT I
STRICT LIABILITY PURSUANT TO 15402A OF THE RESTATEMENT
(SECOND) OF TORTS
COUNT II
FRAUDULENT MISREPRESENTATION AND CONCEALMENT
COUNT III
NEGLIGENT MISREPRESENTATION AND CONCEALMENT
COUNT IV
FRAUDULENT MISREPRESENTATION AND CONCEALMENT
PURSUANT TO THE CONSUMER FRAUD AND DECEPTIVE BUSINESS
PRACTICES ACT 815 ILCS 505, ET SEQ.
COUNT V
NEGLIGENT MISREPRESENTATION AND CONCEALMENT PURSUANT
TO THE CONSUMER FRAUD AND DECEPTIVE BUSINESS PRACTICES ACT
815ILCS 505, ET SEQ.
COUNT VI
CONSPIRACY
COUNT VII
NEGLIGENCE
COUNT VIII
UNJUST ENRICHMENT
COUNT IX
BREACH OF EXPRESS WARRANTY
COUNT X
BREACH OF EXPRESS WARRANTY PURSUANT TO 810 ILCS 5/2-313
COUNT XI
BREACH OF WARRANTY OF MERCHANTABILITY
COUNT XII
BREACH OF WARRANTY OF MERCHANTABILITY PURSUANT TO 810
ILCS 5/2-314
COUNT XIII
BREACH OF WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE
COUNT XIV
BREACH OF WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE
PURSUANT TO 810 ILCS 5/2-315
COUNT XV
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
COUNT XVI
NEGLIGENT UNDERTAKING
COUNT XVII
FALSE ADVERTISING
COUNT XVIII
FALSE ADVERTISING PURSUANT TO THE CONSUMER FRAUD AND
DECEPTIVE BUSINESS PRACTICES ACT 815 ILCS 505, ET SEQ.
COUNT XIX
NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS
COUNT XX
WILFUL AND WANTON MISCONDUCT
COUNT XXI
MEDICAL MONITORING
COUNT XXII
INTENTIONAL EXPOSURE TO A HAZARDOUS SUBSTANCE
COUNT XXIII
LOSS OF CONSORTIUM
COUNT XXIV
CORPORATE RESPONSIBILITY: JOINT VENTURES,
PARENT/SUBSIDIARIES, AND/OR SUCCESSOR CORPORATIONS
NOW COME the Plaintiffs, LEE DALEY, individually, and as
representative of the Estate of THOMAS J. DALEY, LOUIS H. ARADO,
individually, and as representative of the
Estate of DOROTHY ARADO, DAVID B. DENBERG, RICHARD J. FALTICO,
LLOYD FULKERSON, MARY FULKERSON, LESLIE FULKERSON, individually, and
as representative of the Estate of STEPHEN FULKERSON, ROSEMARIE HAMMER,
JUDY J. JAEGER, KAY MARTINSON, ELIZABETH MERRYFIELD, EDWARD A.
O'MALLEY, CHARLENE O'MALLEY and SANDRA RUDMAN, individually and on
behalf all others similarly situated, by and through their attorneys, KENNETH B.
MOLL & ASSOCIATES, LTD., and complaining of the Defendants, AMERICAN
BRANDS, INC., THE AMERICAN TOBACCO COMPANY, INC., B.A.T. INDUSTRIES
P.L.C., BATUS HOLDINGS, INC., BATUS, INC., BRITISH AMERICAN TOBACCO
CO., LTD., THE BROOKE GROUP, LIMITED, BROWN & WILLIAMSON TOBACCO
CORPORATION, THE COUNSEL FOR TOBACCO RESEARCH - U.S.A., INC., HILL
& KNOWLTON, INC., INDUSTRIES PLC, LIGGETT GROUP, INC., LIGGETT &
MYERS, INC., LOEWS CORPORATION, LORILLARD CORPORATION, LORILLARD,
INC., LORILLARD TOBACCO COMPANY, INC., PHILIP MORRIS COMPANIES, INC.,
PHILIP MORRIS INCORPORATED, R.J. REYNOLDS TOBACCO COMPANY, RJR
NABISCO, INC., SMOKELESS TOBACCO COUNCIL, INC., THE TOBACCO
INSTITUTE, INC., UNITED STATES TOBACCOCOMPANY, UST, INC., ADAMS
APPLE DISTRIBUTING MANAGEMENT CORP. d/b/a
ADAMS APPLE DISTRIBUTING CO., ARANGOLD CORPORATION d/b/a J
& R TOBACCO COMPANY d/b/a ARANGO CIGAR CO., BURKLUND
DISTRIBUTORS, INC. -
EAST PEORIA f/k/a SPRINGER-BURKLUND COMPANY d/b/a BURKLUND
DISTRIBUTORS, CULLEN DISTRIBUTORS, INC., EBY-BROWN COMPANY
OF JOLIET d/b/a EBY-BROWN CO., MERCHANTS WHOLESALE INC. d/b/a
MERCHANTS WHOLESALE and REPUBLIC TOBACCO MANAGEMENT CORP.,
and each of them, states
as follows:
I. GENERAL ALLEGATIONS
A. SUMMARY OF SUIT
1.Tobacco is Illinois' deadliest addiction. Cigarette smoking is the leading
preventible cause of premature death and disease in the State of Illinois.
2.According to the American Lung Association of Illinois, Illinois Department
of Health, Centers for Disease Control, Illinois Office on Smoking and Health and
National Center for Chronic Disease Prevention and Health Promotion:
In 1995, there were over 20,000 overall tobacco related deaths
(7,018 from lung cancer and 882 from emphysema);
Every day more than 55 Illinois residents die from tobacco use;
Approximately 2,000 additional Illinois residents die each year
from exposure to environmental ("second-hand") tobacco smoke;
Currently, there are over 3 million smokers in Illinois (2,073,800
adult smokers and almost 1 million smokers under the age of 18);
16.2% of high school boys use smokeless tobacco; and
In 1990, medical costs directly related to smoking was over $1.6
billion.
3.Many of the deaths from tobacco would not have occurred and many of the
3 million residents of the State of Illinois who currently smoke would not have
become addicted if the tobacco industry had not embarked on a course of
conduct to deliberately expose the American public to substances they knew to
be hazardous.
4.For years the tobacco industry has made public statements, paid
advertisements and sworn testimony that tobacco smoking is not harmful or
addictive, when they knew just the opposite from their own internal research.
5.Despite their knowledge that cigarette smoking is extremely addictive, the
tobacco companies have in the past and continue to this day, deny that smoking
is addictive or the cause of disease. Recently, and in furtherance of their
conspiracy, each of the CEOs of the Defendant Tobacco Companies testified
under oath before Congress that smoking was not addictive.
6.Plaintiffs bring this action on behalf of themselves individually and all other
persons similarly situated as a class action against the "Tobacco Cartel" for all
tobacco users (past and present) who reside or have resided in the State of
Illinois; (2) the estates, representatives, guardians and administrators of all
tobacco users; (3) the spouses, children, relatives and "significant others" of all
tobacco users; and (4) all persons who have been exposed to environmental
("second-hand") tobacco smoke and have suffered injuries, including death,
cancer, cardiovascular disease, emphysema, chronic obstructive pulmonary
disease ("COPD"), coronary heart disease, atherosclerotic peripheral vascular
disease, cerebrovascular disease, ischemic heart disease, thrombosis, peptic
ulcer disease, oral leukoplakia, gum disease, tooth loss, infertility, low-birth
weight babies, stillbirths and neonatal deaths.
B. PARTIES
1. Plaintiffs
7.The Class Plaintiffs consist of all tobacco users (past and present) who
reside or have resided in the State of Illinois; the estates, representatives,
guardians and administrators of all tobacco users; the spouses, children,
relatives and "significant others" of all tobacco users; and all persons who have
been exposed to environmental ("second-hand") tobacco smoke and have
suffered or claim to have suffered injury (including any physical, mental or
emotional injury) as a consequence thereof. The Class Plaintiffs smoked,
chewed or were exposed to environmental ("second-hand") tobacco smoke from
various brands of tobacco products including, but not limited to, Alpine,
American, Barclay, Basic, Belair, Benson & Hedges, Best Value, Bright, Bristol,
Buck, Bull Durham, Cambridge, Camel, Caparelles, Capri, Carlton, Century,
Chesterfield, Decade, Dorado, Doral, Dunhill, Eli Cuttter, English Oval, Eve,
Galaxy, Generic, Iceberg, Kent, Kent Golden Lights, Kool, L&M, Laredo, Lark,
Lucky Strike, Magna, Malibu, Marlboro, Max, Merit, Misty, Monarch, Monclair,
More, Newport, NOW, Old Gold, Pall Mall, Parliment, Philip Morris, Players, Prince
Albert, Pyramid, Raleigh, Richland, Salem, Sano, Saratoga, Satin, Silk Cut,
Sobrania, Spring, Spud, Sterling, Stride, Tareyton, Triumph, True, Vantage,
Viceroy, Virginia Slims, Winston, Bourbon Blend smoking tobacco, Corina, Garcia
y Vega, Gold River, Grenadiers cigars, Half & Half smoking tobacco, Kentucky
Club, King Edward Cigars, London Dock, Mail Pouch, Redwood, Robert Burns,
Silva Thins, Silver Creek, Tijuana Smalls, Tiparillo, White Owl, William Penn,
Apple Jack, Beach-Nut Chewing Tobacco, Borkum Riff, Chattanooga Chew,
Copenhagen, Happy Days, Jim Hawkins, Kodiak, Levi Garret, Perfecto Garcia,
Pinkerton Tobacco Co., Red Man Chew, Skoal Bandits and Skoal from on or
about the 1930's to the present. The Class Plaintiffs have suffered various
injuries, including but not limited to, death, cancer, cardiovascular disease,
emphysema, chronic obstructive pulmonary disease ("COPD"), coronary heart
disease, atherosclerotic peripheral vascular disease, cerebrovascular disease,
ischemic heart disease, thrombosis, peptic ulcer disease, oral leukoplakia, gum
disease, tooth loss, infertility, low-birth weight babies, stillbirths and neonatal
deaths.
8.Plaintiff, LEE DALEY, is a citizen and resident of the City of Rolling
Meadows, County of Cook, State of Illinois. Ms. Daley began smoking in 1950 at
the age of 16. Ms. Daley smoked primarily Caparelles, Winston, Eaves and
Marlboro cigarettes, 1-1AB packs a day, for 43 years. As a result of her smoking,
Ms. Daley was diagnosed with emphysema in 1983, which required the use of
oxygen 24 hours a day through nasal canales until 1993 when she received a
lung transplant. Ms. Daley was unsuccessful in her many attempts to quit
smoking utilizing two in-patient hospital cessation programs, acupuncture,
hypnosis and nicotine gum because of her addiction. Ms. Daley was finally able
to quit smoking, as instructed, immediately after her lung transplant surgery in
1993.
9.Decedent, THOMAS J. DALEY, was at all relevant times married to Plaintiff,
LEE DALEY. Mr. Daley was exposed to environmental ("second-hand") tobacco
smoke from on or about 1950 through on or about 1993. Mr. Daley enjoyed his
work as a lithographer almost his whole life but was required to quit in
September, 1992, to take care of his wife, Ms. Daley, because she was unable to
ambulate because of her condition caused by her smoking. As a result of his
wife's smoking, Mr. Daley was diagnosed with lung cancer on March 10, 1997,
which led to his death 10 days ago, on May 27, 1997.
10.Plaintiff, LOUIS H. ARADO, as Representative of the Estate of DOROTHY
ARADO, is a citizen and resident of the City of Chicago, County of Cook, State
of Illinois. Decedent, Ms. Arado, began smoking in 1954 at the age of 14. Ms.
Arado smoked primarily Virginia Slims, Tareyton, Parliment and Viceroy
cigarettes, two packs a day, for almost 40 years. As a result of her smoking, on
February 11, 1993, Ms. Arado was diagnosed with lung cancer which had
metastasized to her brain. Ms. Arado was unsuccessful in her attempts to quit
smoking utilizing the nicotine patch because of her addiction. Ms. Arado was
finally able to quit smoking, as instructed, immediately after being diagnosed.
However, Ms. Arado died shortly thereafter, on July 18, 1993, from metastasized
lung cancer. Ms. Arado gave birth to three children, all of which were born
low-birth weight babies due to her smoking.
11.Plaintiff, LOUIS H. ARADO, is a Captain in the Chicago Police Department
and was married to Decedent, DOROTHY ARADO. Mr. Arado was exposed to
environmental ("second-hand") tobacco smoke from on or about 1954 through
on or about 1993. As a result of his wife's smoking and premature death, Mr.
Arado has suffered severe physical, psychological and emotional problems
which continue to this day.
12.Plaintiff, DAVID B. DENBERG, is a citizen and resident of the City of
Skokie, County of Cook, State of Illinois. Mr. Denberg began smoking in 1967 at
the age of 8. Mr. Denberg smoked primarily Salem, Kool and Marlboro cigarettes,
1-2 packs a day, for over 30 years and continues to smoke cigarettes. As a result
of his smoking, in 1988, Mr. Denberg was diagnosed with chronic bronchitis
which required hospitalization and oxygen treatment therapy. Mr. Denberg has
been unsuccessful in his many attempts to quit smoking utilizing nicotine patch,
hypnotism and "cold turkey" because of his addiction.
13.Plaintiff, RICHARD J. FALTICO, is a citizen and resident of the City of
Chicago, County of Cook, State of Illinois. Mr. Faltico began smoking in 1939 at
the age of 13. Mr. Faltico smoked primarily Lark cigarettes, 1-3 packs a day, for
50 years. As a result of his smoking, in 1993, Mr. Faltico was diagnosed with a
number of medical problems including emphysema, bladder cancer, kidney
cancer and prostate cancer. As a result of these conditions caused by smoking,
Mr. Faltico has undergone 80-90 surgeries, 40 radiation treatments and 15
chemotherapy treatments in the past 4 years alone. The estimated total amount
of his medical bills in the past 4 years is $1-3 million. Mr. Faltico enjoyed his
work as a chef almost all his life but was required to quit in 1989 because he had
difficulty breathing and was coughing up blood. During that time Mr. Faltico quit
smoking with great difficulty because of his addiction.
14.Plaintiff, LLOYD FULKERSON, is a citizen and resident of the City of
Sterling, County of Whiteside, State of Illinois. Mr. Fulkerson began smoking in
1942 at the age of 12. Mr. Fulkerson smoked primarily Camel, Winston, Vantage
and Merit cigarettes, 2AB packs a day, for 55 years. As a result of his smoking,
Mr. Fulkerson was diagnosed with emphysema in 1996 and suffered a major
heart attack on April 20, 1997, which required him to undergo an emergency
quadruple bypass heart surgery. Mr. Fulkerson currently has a collapsed lung
and requires oxygen treatments 4 times a day. Mr. Fulkerson was unsuccessful
at numerous attempts to quit smoking utilizing nicotine patch, nicotine gum,
hypnotism and "cold turkey" because of his addiction. Mr. Fulkerson was finally
able to quit smoking, as instructed, immediately after his quadruple bypass heart
surgery.
15.Plaintiff, MARY FULKERSON, is a citizen and resident of the City of
Sterling, County of Whiteside, State of Illinois. Ms. Fulkerson is married to Mr.
Fulkerson. Ms. Fulkerson was exposed to environmental ("second-hand")
tobacco smoke from on or about 1950 through on or about April 20, 1997. As a
result of her husband's smoking and medical conditions, Ms. Fulkerson has
suffered severe physical, psychological and emotional problems which continue
to this day.
16.Plaintiff, LESLIE FULKERSON, as Representative of the Estate of
STEPHEN FULKERSON, is a citizen and resident of the City of Rockfalls, County
of Whiteside, State of Illinois. Decedent, Mr. Fulkerson, began smoking in 1966
at the age of 13. Mr. Fulkerson smoked primarily Kool, Camel and Marlboro
cigarettes, two packs a day, for 31 years. As a result of his smoking, on
November 18, 1996, Mr. Fulkerson was diagnosed with lung cancer which
required chemotherapy and radiation treatments. On April 24, 1997, Mr.
Fulkerson underwent surgery in order to remove one of his lungs. However, the
operating surgeon advised him that removing his lung was no longer an option
because the cancer had metastasized. Mr. Fulkerson died just 11 days ago, on
June 26, 1997, from lung cancer.
17.Plaintiff, LESLIE FULKERSON, was married to Decedent, STEPHEN
FULKERSON. Ms. Fulkerson was exposed to environmental ("second-hand")
tobacco smoke from on or about 1982 through on or about November 18, 1993.
As a result of her husband's smoking and eventual death, Ms. Fulkerson has
suffered severe physical, psychological and emotional problems which continue
to this day.
18.Plaintiff, ROSEMARIE HAMMER, is a citizen and resident of the City of
Villa Park, County of DuPage, State of Illinois. Ms. Hammer began smoking in
1961 at the age of 13. Ms. Hammer smoked primarily Winston and Marlboro
cigarettes, 3 packs a day, for 31 years. As a result of her smoking, in 1993, Ms.
Hammer was diagnosed with lung cancer which required the removal of her left
lung and 6 weeks of radiation treatment. Shortly before her diagnosis of lung
cancer, Ms. Hammer quit smoking with great difficulty because of her addiction.
19.Plaintiff, JUDY J. JAEGER, is a citizen and resident of the City of Rochelle,
County of Winnebago, State of Illinois. Ms. Jaeger began smoking in 1960 at the
age of 13. Ms. Jaeger smoked primarily Chesterfield, Camel, Pall Mall, Winston,
Century and Marlboro cigarettes, 2-3 packs a day, for 36 years. As a result of her
smoking, in 1992, Ms. Jaeger was diagnosed with emphysema and underwent
triple bypass heart surgery on August 3, 1996. Ms. Jaeger was unsuccessful at
her numerous attempts to quit smoking utilizing nicotine gum, hypnotism and
"cold turkey" because of her addiction. Ms. Jaeger was finally able to quit
smoking, as instructed, immediately after her triple bypass heart surgery.
However, as a result of her condition caused from smoking, Ms. Jaeger requires
the use of a nebulizer, 4-5 times a day, everyday, and an inhaler to facilitate her
breathing and is only able to walk, at most, one hour a day.
20.Plaintiff, KAY MARTINSON, is a citizen and resident of the City of
Naperville, County of DuPage, State of Illinois. Ms. Martinson was exposed to
environmental ("second- hand") tobacco smoke from on or about 1985 through
the present. Ms. Martinson has worked in the psychology department at Good
Samaritan Hospital for the past 12 years. Until 1989, patients were allowed to
smoke anywhere in the department. In 1989, the employees petitioned for a
designated smoking room for the patients and, as a result, a smoking room was
provided. In 1991, a new building was built for the department but the new
smoking room is only 9 feet from the nurses' work area. The smoking room is
not ventilated and the smoke travels to the nurses' work area. Ms. Martinson
suffers from headaches, itchy eyes, sinus problems and allergies.
21.Plaintiff, ELIZABETH MERRYFIELD, is a citizen and resident of the City of
Oak Lawn, County of Cook, State of Illinois. Ms. Merryfield began smoking in
1938 at the age of 12. Ms. Merryfield smoked primarily Chesterfield and Kent
cigarettes, 2 packs a day, for 51 years. As a result of her smoking, Ms. Merryfield
was diagnosed with lung cancer in 1989 which metastasized to her brain in 1991.
As a result of her condition caused by smoking, Ms. Merryfield has undergone
radiation treatments and chemotherapy treatments. Ms. Merryfield was
unsuccessful at her numerous attempts to quit smoking because of her addiction
but was finally able to quit smoking, as instructed, immediately after her
diagnosis of lung cancer. Ms. Merryfield enjoyed her work as a waitress almost
all her life but was required to quit in 1989 as a result of her medical problems
because she is totally dependant on the use of oxygen by nasal canales, every
hour of every day of her life.
22.Plaintiff, EDWARD A. O'MALLEY, is a citizen and resident of the City of
Park Forest, County of Will, State of Illinois. Mr. O'Malley began smoking in 1943
at the age of 17. Mr. O'Malley smoked primarily Lucky Strike, Camel and Marlboro
cigarettes, 3-4 packs a day, for 34 years. As a result of his smoking, Mr. O'Malley
was diagnosed with chronic obstructive pulmonary disease ("COPD") in 1986 and
with emphysema in 1995. Mr. O'Malley enjoyed his home improvement business
but was required to quit in 1995 as a result of his medical problems because he
is totally dependant on the use of oxygen by nasal canales, every hour of every
day of his life.
23.Plaintiff, CHARLENE O'MALLEY, is a citizen and resident of the City of
Park Forest, County of Will, State of Illinois. Ms. O'Malley is married to Mr.
O'Malley. Ms. O'Malley was exposed to environmental ("second-hand") tobacco
smoke from on or about 1952 through on or about 1977. As a result of her
husband's smoking and medical conditions, Ms. O'Malley has suffered severe
physical, psychological and emotional problems which continue to this day.
24.Plaintiff, SANDRA RUDMAN, is a citizen and resident of the City of
Chicago, County of Cook, State of Illinois. Ms. Rudman began smoking in 1949
at the age of 14. Ms. Rudman smoked primarily Lucky Strike and Parliment
cigarettes, 2 packs a day, for 34 years. As a result of her smoking, in 1966, Ms.
Rudman was diagnosed with chronic obstructive pulmonary disease ("COPD")
and emphysema. Ms. Rudman enjoyed her work as a secretary but was required
to quit as a result of her medical conditions because she is totally dependant on
the use of oxygen by nasal canales, every hour of every day of her life. Due to
her addiction to smoking, Ms. Rudman continued to smoke even after she was
diagnosed with the above conditions. Ms. Rudman was finally able to quit
smoking, as instructed, 3 years after being diagnosed.
3. Defendants
25.Each of the Defendants manufactured, promoted, marketed, advertised,
distributed and sold their TOBACCO PRODUCTS throughout the United States
and in the State of Illinois.
26.The Defendant, AMERICAN BRANDS, INC., is a Delaware corporation
whose principal place of business is located at Six Stamford Forum, Stamford,
Connecticut. American Brands, Inc., is the parent company of The American
Tobacco Company.
27.The Defendant, THE AMERICAN TOBACCO COMPANY, INC. ("ATC"), is a
Delaware corporation whose principal place of business is located at Six
Stamford Forum, Stamford, Connecticut. On December 21, 1994, the ATC was
purchased by B.A.T. Industries, P.L.C. and merged into the Brown and
Williamson Tobacco Corporation, which has succeeded to the liabilities of the
ATC by operation of law or as a matter of fact. The ATC and American Brands,
Inc. manufacture, advertise and sell Lucky Strike, Pall Mall, Tareyton, Malibu,
American, Monclair, Misty, Barclay, Iceberg, Silk Cut, Silva Thins, Sobrania, Bull
Durham and Carlton cigarettes throughout the United States and in the State of
Illinois.
28.The Defendant, B.A.T. INDUSTRIES P.L.C., is a British corporation whose
principal place of business is Windsor House, 50 Victoria St., London. Through
a succession of intermediary corporations and holding companies, B.A.T.
Industries is the sole shareholder of Brown & Williamson.
29.The Defendant, BATUS HOLDINGS, INC., is a Delaware corporation with
its principal place of business at 1500 Brown & Williamson Tower, Louisville,
Kentucky 40202. Batus Holding, Inc., is a subsidiary of B.A.T. Industries PLC.
Batus Holdings, Inc., is or has been the parent corporation of Brown &
Williamson Tobacco Corporation and has participated in the manufacture and
distribution of cigarettes and other tobacco products both individually and
through its agent and alter ego, the Defendant Brown & Williamson, throughout
the United States and in the State of Illinois.
30.The Defendant, BATUS, INC., is the parent of Brown & Williamson
Tobacco Corporation and is a Wisconsin corporation. The principal place of
business of Batus, Inc., is 1500 Brown & Williamson Tower, Louisville, Kentucky.
31.The Defendant, BRITISH AMERICAN TOBACCO CO., LTD. ("BATCO"), is
a British corporation whose principal place of business is Millbank, Knowle
Green, Staines, Middlesex, England TW181DY. Brown & Williamson Tobacco
Corporation is or was a subsidiary or division of BATCO.
32.The Defendant, THE BROOKE GROUP, LIMITED, the parent corporation
of Liggett Group, Inc. and Liggett & Myers, Inc., is a Delaware corporation with
its principal place of business at 300 North Duke Street, Durham, North Carolina.
Brooke participated in the manufacture and sale of cigarettes and/or other
tobacco products both individually and through its agents or alter egos, Liggett
Group and Liggett & Myers, throughout the United States and in the State of
Illinois.
33.The Defendant, BROWN & WILLIAMSON TOBACCO CORPORATION
("B&W"), is a Delaware corporation whose principal place of business is 1500
Brown & Williamson Tower, Louisville, Kentucky 40202. Brown & Williamson
manufactures, advertises, and sells Kool, Raleigh, Barclay, Belair, Capri,
Richland, Laredo, Eli Cutter and Viceroy cigarettes and other tobacco products
throughout the United States and in the State of Illinois.
34.The Defendant, THE COUNCIL FOR TOBACCO RESEARCH - U.S.A., INC.
("CTR"), successor in interest to the Tobacco Institute Research Committee
("TIRC"), is a New York nonprofit corporation with its principal place of business
at 900 3rd Avenue, New York, New York 10022. At all relevant times, the CTR and
the TIRC operated as public relations and lobbying arms of the Tobacco
Companies and as agents and employees of the Tobacco Companies.
35.The Defendant, HILL & KNOWLTON, INC., is an international public
relations firm with offices located in major United States cities and whose
principal place of business is 420 Lexington Avenue, New York, New York.
Defendant Hill & Knowlton played an active and knowing role in the conspiracy
complained of, aiding the circulation and/or publication of many of the false
statements of the tobacco industry attributable to the TIRC and the CTR.
36.The Defendant, INDUSTRIES PLC, is a British corporation whose
registered office is located at Windsor House, 50 Victoria Street, London,
England SWIH ONL, which manufactured and sold cigarettes and other tobacco
products through its agent or alter ego B&W.
37.The Defendant, LIGGETT GROUP, INC., and its wholly-owned subsidiary,
Liggett and Myers, Inc., are Delaware corporations whose principal place of
business is located at Main and Fuller Streets, Durham, North Carolina.
Defendants Liggett Group, Inc. and Liggett and Myers, Inc. are subsidiaries of
Defendant Brooke Group, Ltd., a Delaware corporation whose principal place of
business is located at 300 North Duke Street, Durham, North Carolina. All of the
aforesaid corporations manufacture, advertise and sell Chesterfield, Decade,
L&M, Pyramid, Dorado, Eve, Stride, Generic and Lark cigarettes throughout the
United States and in the State of Illinois.
38.The Defendant, LIGGETT & MEYERS, INC., is a Delaware corporation
whose principal place of business is Main and Fuller, Durham, North Carolina.
Liggett manufactures, advertises and sells Chesterfield, Decade, L&M, Pyramid,
Dorado, Eve, Stride, Generic and Lark cigarettes and other tobacco products
throughout the United States and in the State of Illinois.
39.The Defendant, LOEWS CORPORATION, is a Delaware corporation whose
principal place of business is located at 1 Park Avenue, New York, New York
10016. Loews Corporation participated in the manufacture and sale of cigarettes
and/or other tobacco products both individually and through its agent or alter
ego, Lorillard Corporation, throughout the United States and in the State of
Illinois.
40.The Defendant, LORILLARD CORPORATION, is a Delaware corporation
whose principal place of business is located at 1 Park Avenue, New York, New
York 10016. Lorillard Corporation is a wholly-owned subsidiary or division of
Loews Corporation.
41.The Defendant, LORILLARD, INC., is a Delaware corporation whose
principal place of business is located at One Park Avenue, New York, New York.
Lorillard, Inc., manufactures, advertises and sells Old Gold, Kent, Triumph, Satin,
Max, Spring, Newport and True cigarettes throughout the United States and in the
State of Illinois.
42.The Defendant, LORILLARD TOBACCO COMPANY, INC. ("Lorillard"), is a
Delaware corporation whose principal place of business is 1 Park Avenue, New
York, New York 10016. Lorillard manufactures, advertises and sells Old Gold,
Kent, Triumph, Satin, Max, Spring, Newport, and True cigarettes and other
tobacco products throughout the United States and in the State of Illinois.
43.The Defendant, PHILIP MORRIS COMPANIES, INC., is a Virginia
corporation whose principal place of business is located at 120 Park Avenue,
New York, New York 10016. Philip Morris Companies, Inc., is the parent
corporation of Philip Morris Incorporated (Philip Morris U.S.A.) Philip Morris
Companies, Inc., manufacture, advertise and sell Philip Morris, Merit, Cambridge,
Marlboro, Benson & Hedges, Virginia Slims, Alpine, Dunhill, English Ovals,
Galaxy, Players, Saratoga, Basic, Bristol, Buck and Parliament cigarettes
throughout the United States and in the State of Illinois.
44.The Defendant, PHILIP MORRIS INCORPORATED ("Philip Morris"), is a
Virginia corporation whose principal place of business is 120 Park Avenue, New
York, New York 10017. Philip Morris manufactures, advertises and sells Philip
Morris, Merit, Cambridge, Marlboro, Benson & Hedges, Virginia Slims, Alpine,
Dunhill, English Ovals, Galaxy, Players, Saratoga, and Parliament cigarettes and
other tobacco products throughout the United States and in the State of Illinois.
45.The Defendant, R.J. REYNOLDS TOBACCO COMPANY ("Reynolds"), is a
New Jersey corporation whose principal place of business is Fourth & Main
Street, Winston-Salem, North Carolina 27102. Reynolds manufactures, advertises
and sells Camel, Vantage, Now, Doral, Winston, Sterling, Magna, More, Century,
Bright Rite, Best Value, Monarch, Prince Albert and Salem cigarettes and other
tobacco products throughout the United States and in the State of Illinois.
46.The Defendant, RJR NABISCO, INC. ("RJR"), is a Delaware corporation
whose principal place of business is 1301 Avenue of the Americas, New York,
New York 10015. RJR Nabisco is the parent corporation of R. J. Reynolds
Tobacco Company and has participated in the sale and manufacture of cigarettes
and other tobacco products both individually and through its agent or alter ego,
Reynolds, throughout the United States and in the State of Illinois.
47.The Defendant, SMOKELESS TOBACCO COUNCIL, INC. ("STC"), is a New
York corporation with its principal place of business at 1627 K Street Northwest,
Washington, D.C. 20006. STC, at all times relevant hereto, operated as a public
relations and lobbying arm of the Tobacco Companies and as their agent and
employee.
48.The Defendant, THE TOBACCO INSTITUTE, INC., is a New York nonprofit
corporation with its principal place of business at 1875 I Street Northwest, Suite
800, Washington, D.C. 20006. At all relevant times, Tobacco Institute operated
as a public relations and lobbying arm of the Tobacco Companies and was an
agent and employee of the Tobacco Companies.
49.The Defendant, UNITED STATES TOBACCO COMPANY, is a Delaware
corporation whose principal place of business is 100 West Putnam Avenue,
Greenwich, Connecticut. U.S. Tobacco manufactures, advertises and sells Sano
cigarettes. U.S. Tobacco also manufactures, advertises and sells approximately
88% of the smokeless tobacco (snuff and chewing tobacco) sold in the United
States, under various brand names including Happy Days, Skoal and
Copenhagen throughout the United States and in the State of Illinois.
50.The Defendant, UST, INC., is the parent of United States Tobacco
Company, and is a Delaware corporation whose principal place of business is
located at 100 West Putnam Avenue, Greenwich, Connecticut. UST, Inc.,
manufactures and sells Sano cigarettes throughout the United States and in the
State of Illinois.
51.The Defendant, ADAMS APPLE DISTRIBUTING MANAGEMENT CORP.
d/b/a ADAMS APPLE DISTRIBUTING CO., is an Illinois corporation with its
principal place of business at 5100 North Ravenswood, Chicago, Illinois 60640
and at all times relevant hereto, distributed, sold and promoted the sale of
cigarettes and tobacco products in the State of Illinois.
52.The Defendant, ARANGOLD CORPORATION d/b/a J & R TOBACCO
COMPANY d/b/a ARANGO CIGAR CO., is an Illinois corporation with its principal
place of business at 8030 North Central Park, Skokie, Illinois 60076 and at all
times relevant hereto, distributed, sold and promoted the sale of cigarettes and
tobacco products in the State of Illinois.
53.The Defendant, BURKLUND DISTRIBUTORS, INC. - EAST PEORIA f/k/a
SPRINGER-BURKLUND COMPANY d/b/a BURKLUND DISTRIBUTORS, is an
Illinois corporation with its principal place of business at 2500 North Main Street,
East Peoria, Illinois 61611 and at all times relevant hereto, distributed, sold and
promoted the sale of cigarettes and tobacco products in the State of Illinois.
54.The Defendant, CULLEN DISTRIBUTORS, INC., is an Illinois corporation
with its principal place of business at 125 South Park Street, Ottawa, Illinois
61364 and at all times relevant hereto, distributed, sold and promoted the sale of
cigarettes and tobacco products in the State of Illinois.
55.The Defendant, EBY-BROWN COMPANY OF JOLIET d/b/a EBY-BROWN
CO., is an Illinois corporation with its principal place of business at 1001 Sullivan
Road, Aurora, Illinois 60506 and at all times relevant hereto, distributed, sold and
promoted the sale of cigarettes and tobacco products in the State of Illinois.
56.The Defendant, MERCHANTS WHOLESALE INC. d/b/a MERCHANTS
WHOLESALE , is an Illinois corporation with its principal place of business at
2517 Ellington Road, Quincy, Illinois 62301 and at all times relevant hereto,
distributed, sold and promoted the sale of cigarettes and tobacco products in the
State of Illinois.
57.The Defendant, REPUBLIC TOBACCO MANAGEMENT CORP., is an Illinois
corporation with its principal place of business at 525 West Monroe Street,
Chicago, Illinois 60606 and at all times relevant hereto, distributed, sold and
promoted the sale of cigarettes and tobacco products in the State of Illinois.
58.The above named Defendants are sometimes herein collectively referred
to as "Defendants," "Tobacco Industry," "Tobacco Companies," or "Tobacco
Cartel."
II. NATURE OF DEFENDANTS' WRONGFUL CONDUCT AND CONSPIRACY
A. IN GENERAL
59.This action arises out of an ongoing course of wrongful conduct by each
Defendant individually and in conspiracy with other Defendants, and by the trade
associations created by them.
60.Defendants manufacture, promote, market, advertise, package, distribute
and sell cigarettes and/or other tobacco products. Defendants' earnings on
cigarettes sold throughout the United States exceeded six billion dollars in 1996
alone, on gross sales of forty-five billion dollars. A substantial portion of those
sales were to residents of Illinois, the class members herein.
61.Today, some 50 million Americans smoke and, according to current
trends, 22% of adult Americans will still be smokers in the year 2000. Despite the
overwhelming scientific evidence that cigarettes and other tobacco products
pose serious health risks and death, millions of Illinois residents continue to use
tobacco, including many new adolescent and teen smokers, because they are
addicted to nicotine, the drug contained in tobacco.
62.Research has shown that nicotine is a highly addictive substance, as
recognized by the Office of the U.S. Surgeon General, the World Health
Organization, the American Medical Association, the American Psychiatric
Association, the American Psychological Association, the American Society of
Addiction Medicine, the American Public Health Association and the Medical
Research Counsel in the United Kingdom. The National Institute of Drug Abuse
has called cigarette smoking the most common example of drug dependence in
the United States.
63.The addictive nature of nicotine is further illustrated in statistics: 17
million Americans try to quit smoking each year, but fewer than 1 out of 10
succeed; 8 out of 10 smokers say they wish they had never started smoking;
after surgery for lung cancer, almost half of the smokers resumed smoking;
among smokers who suffer heart attacks, 38% resume smoking while they are
still in the hospital; of smokers who have had their larynx removed, 40% try
smoking again.
64.Tobacco use is especially significant, and increasing, among children.
Virtually all new tobacco users are children. Approximately 3 million children
under the age of 18 are daily smokers, and tobacco use among children is rising.
(University of Michigan, "Monitoring the Future: National High School Senior
Survey", December 15, 1995.) Approximately 3,000 children start smoking each
day, and between one-third and one-half of adolescents who try smoking become
regular smokers. Between 1991 and 1994 the percentage of eighth graders who
used tobacco rose by 30%, and increase in usage among 10th and 12th graders
was also substantial. Id. 40% of high school seniors who smoke say they have
tried to quit and failed. David Kessler, former Commissioner of the U.S. Food and
Drug Administration ("FDA"), calls tobacco use a "pediatric disease." (Speech
at Columbia University School of Law, March 8, 1995.)
65.Tobacco is our country's deadliest addiction. Cigarette smoking is the
leading preventable cause of premature death and disease in the United States.
(Institute of Medicine, Growing Up Tobacco Free: Preventing Nicotine Addiction
in Children and Youths, National Academy of Sciences (1994) at 3.) In the latter
half of the 20th century, some 10 million Americans have been killed by
tobacco-related disease. Nearly 420,000 Americans die annually from
tobacco-related causes. To put that figure in perspective, tobacco accounts for
one out of every five deaths in the United States. (Centers for Disease Control,
Morbidity and Mortality Weekly Report, June 27, 1994.) 19,269 Illinois residents
died from smoking-related causes in 1993. Tobacco alone kills more Americans
each year than alcohol (including drunk driving), car accidents, fires, AIDS,
heroin, cocaine, suicide, and homicides. (Office on Smoking and Health, Centers
for Disease Control and Prevention, using data from 1990.) Based upon current
trends, of the American children alive today, more than 5 million will be killed by
tobacco- related disease during the 21st century.(Illinois Complaint paragraph 37)
66.Every day in the United States more than 1,000 Americans die from
tobacco use, the equivalent of three jumbo jets crashing every day, 365 days of
the year. The American Cancer Society estimates that there are 169,900 new
cases of lung cancer annually and 157,400 people will die from lung cancer each
year. Smoking causes approximately 87% of all lung- cancer deaths. (American
Cancer Society, Cancer Facts and Figures, 1995.) Lung cancer is only the tip of
the iceberg. 82% of laryngeal cancers are due to smoking and 80% of the 10,200
deaths from esophageal cancers are due to smoking. (Bartecci, C.E., MacKenzie,
T.D., Scihrier, N.R.W., "Human Cost of Tobacco Use," The New England Journal
of Medicine, Vol. 330, No. 13, PP. 907-912 (1994).)
67.Even more Americans die from heart disease caused by smoking. An
estimated 180,000 cardiovascular deaths were attributable to smoking in 1990.
(Centers for Disease Control, Morbidity and Mortality Weekly Report, (August 26,
1993).) 21% of all deaths from chronic heart disease are linked directly to
smoking. (Centers for Disease Control, Reducing the Health Consequences of
Smoking: Twenty-Five Years of Progress, Report of the Surgeon General, DHHS,
(1989).) Tobacco use is also the leading cause of death from respiratory
diseases such as pneumonia, bronchitis and emphysema, killing over 84,000
Americans in 1990. (Centers for Disease Control, Morbidity and Mortality Weekly
Report, (August 26, 1993).) As is the case with lung cancer, the vast majority of
COPD deaths are attributable to tobacco use. Approximately 84% of the COPD
deaths in men and 79% of the COPD deaths in women are directly attributable to
cigarette smoking. (Centers for Disease Control, Reducing the Health
Consequences of Smoking: Twenty-Five Years of Progress, Report of the
Surgeon General, DHHS (1989).) The vast majority of Americans who die from
tobacco use die between the ages of 45 and 64 and not during old age. A
nationwide poll conducted during 1994 found that 44% of all Americans
questioned stated that they had a family member or close friend who had died
from tobacco. (Mathematica Policy Research, Inc., Robert Wood Johnson
Foundation Youth Access Survey (December 1994) at 12.)
68.Several key factors are common to, and at the heart of, the tobacco
problem. They are: (1) virtually all new tobacco users are children; (2) the vast
majority of these children become addicted long before they are old enough to
purchase tobacco products legally; and (3) there is no longer any question about
the fact that tobacco products are addictive.
69.Cigarette, pipe, cigar and smokeless tobacco diseases share a common
root cause: a highly addictive product that has been fraudulently and falsely
promoted by the corporations comprising the tobacco industry.
70.Many of the deaths from tobacco would not have occurred and many of
the 50 million Americans who currently smoke would not have become addicted
if the Tobacco Industry had not embarked on a course of conduct to deliberately
expose the American public to substances they knew to be hazardous.
71.For years, the Tobacco Industry has made public statements, paid
advertisements and sworn testimony that tobacco smoking is not harmful or
addictive, when they knew from their own internal research just the opposite.
72.Despite their knowledge that cigarette smoking is extremely addictive, the
Tobacco Companies have in the past and continue to this day, to deny that
smoking is addictive or the cause of disease. In April of 1994, and in furtherance
of their conspiracy, each of the CEOs of the Defendant Tobacco Companies
testified under oath before Congress that smoking was not addictive.
73.The Tobacco Companies' insistent and affirmative denial that nicotine is
addictive, and their pervasive advertising, promotional and public relations
strategy, is designed to, and has effectively, nullified the public's meaningful
appreciation of the nature and extent of nicotine dependence. Specifically, the
Tobacco Companies' emphasis on smoking as a voluntary, personal choice and
its positive social benefits misleads the public, especially impressionable young
people, into thinking that smoking can be stopped as easily as started. Thus,
knowledge of addiction may come too late.
74.Additionally, the Tobacco Companies have manipulated and altered the
levels of nicotine and other substances in their products for the sole purpose of
creating, sustaining and enhancing addition.
B. PRE-CONSPIRACY ADVERTISING AND PROMOTIONAL ACTIVITIES: FALSE
CLAIMS OF HEALTH AND SAFETY
75.The means by which the Defendants have carried out their conspiracy
are twofold: first, they agreed to represent falsely to the public that they were
creating a new, unbiased and trustworthy source to answer questions about
smoking and health; and second, they used the public's acceptance of their
representations of such trustworthiness in order to misrepresent, suppress,
distort and confuse the facts about the health dangers of tobacco products,
including nicotine addiction.
76.As early as 1945 there was growing evidence and recognition of a health
concern for smokers. In 1945, Alton Ochsner, M.D., a New Orleans surgeon and
regional medical director of the American Cancer Society, reported that "there
is a distinct parallelism between the incidence of cancer of the lung and the sale
of cigarettes. . . . [T]he increase is due to the increased incidence of smoking and
. . . smoking is a factor because of the chronic irritation it produces." In 1946,
tobacco company chemists themselves reported a similar concern, "scientists
and medical authorities have claimed for many years that the use of tobacco
contributes to cancer . . . . Just enough evidence has been presented to justify
the possibility of such a presumption."
77.Despite evidence linking cigarettes to lung disease and cancer, the
Tobacco Companies chose sales over public health. From the 1930's to the mid
1950's, they made express claims and warranties as to the healthiness of their
products with reckless disregard of the falsity of their claims. Examples of these
health warranties: Camel - "Not a single case of throat irritation due to smoking
Camels;" Philip Morris - "The Throat-tested cigarette;" and Chesterfield - "never
. . . did you any harm."
C. THE 1953 "BIG SCARE" AND INDUSTRY RESPONSE
78.In December of 1953, Ernest L. Wynder, M.D., of the Sloan-Kettering
Institute, published the results of a study with mice which provided biological
evidence that cigarette smoke caused cancer. The previous year a British
researcher, Richard Doll, M.D., published a statistical analysis showing that lung
cancer was more common among people who smoked and that the risk of lung
cancer was directly proportional to the number of cigarettes smoked. The
widespread reporting of these studies caused what cigarette company officials
called "The Big Scare."
1. Creation of the Tobacco Industry Research Committee and the Tobacco
Institute
79.The tobacco industry responded immediately with a conspiracy to
"collectively deal with the health issue . . . to get the industry out of this hole."
(Memorandum from B&W President Timothy Hartnett to his counterparts at other
tobacco companies, Dec. 14, 1953.) At a meeting on December 15, 1953, the
CEOs of the leading tobacco companies agreed that a strong and collective
public relations campaign was necessary. They entered into a contract and
conspired to conceal adverse information and to cease to compete on the basis
of relative health risks, an agreement that is a violation of the Illinois Antitrust
Act. (Memorandum of public relations firm Hill & Knowlton, summarizing the
meeting.)
80.In furtherance of the conspiracy, nine days later, Hill & Knowlton
presented a detailed recommendation to the Tobacco Companies, in which it
emphasized the importance of gaining public trust and avoiding the appearance
of bias, if the "pro-cigarette" strategy was to succeed.
81.As a result of the December 15, 1953, meeting and the recommendations
of Hill & Knowlton, on January 4, 1954, the tobacco industry announced the
formation of the TIRC. A full page advertisement entitled "A Frank Statement To
Cigarette Smokers" which appeared in 448 newspapers with readership of
43,245,000, proclaimed: Recent reports on experiments with mice that showed
that painting mice with tobacco tar caused cancer have given wide publicity to
the theory that cigarette smoking is in someway linked with lung cancer in
human beings . . . Many people have asked us what we are doing to meet the
public's concern aroused by the recent reports. Here's the answer:
We accepted an interest in people's health as a basic responsibility,
paramount to every other consideration in our business. [T]here is no proof that
cigarette smoking is one of the causes [of lung cancer]. We believe the products
we make are not injurious to health. We always have and always will cooperate
closely with those whose task it is to safeguard the public health. We are
pleading aid and assistance to the research effort into all phases of tobacco use
and health. For this purpose we are establishing a joint industry group consisting
initially of the undersigned. This group will be known as the TOBACCO
INDUSTRY RESEARCH COMMITTEE. In charge of the research activities of the
Committee will be a scientist of unimpeachable integrity and national repute. In
addition there will be an Advisory Board of scientists disinterested in the
cigarette industry. A group of distinguished men from medicine, science, and
education will be invited to serve on this Board. These scientists will advise the
Committee on its research activities. This statement is being issued because we
believe the people are entitled to know where we stand on this matter and what
we intend to do about it.
82.The formation of TIRC, which changed its name in 1964 to CTR, was part
of the Tobacco Companies' scheme to counter the adverse public sentiment
about the cancer-link studies and to regain the public trust. Defendants
conspired with CTR to use CTR as part of a massive public relations campaign,
to mislead Plaintiffs and class members, and to conceal and suppress from them
material information regarding the addictive nature of nicotine, Defendants'
control of nicotine, and the true purpose of the CTR.
83.Defendants falsely advertised CTR as an entirely independent and
objective scientific research entity which would investigate the supposed hazards
of cigarette smoking and report the results of these cigarette studies to the
public. The research reported by CTR was not independent of the tobacco
industry, and CTR has not reported the full truth about the hazards of smoking
to the public.
2. The Tobacco Institute: A Front for the Tobacco Cartel
84.To further the Tobacco Industry's existing conspiracy, a second entity, the
Tobacco Institute was formed by cigarette manufacturers in 1958 to assist with
the industry's lobbying and public relations efforts. Like the CTR, the Tobacco
Institute is an aggressive lobbying group aimed at promoting tobacco use and
increasing cigarette sales. Both entities are "fronts" for the conspirators,
operated and effectively controlled by the Tobacco Companies through their
agent, Hill & Knowlton. The Tobacco Institute had a $15 million budget in 1994,
funded by the tobacco companies.
85.Hill & Knowlton had and continues to have substantial involvement in
both the TIRC (CTR) and the Tobacco Institute. TIRC's offices were located in
the Empire State Building, one floor below the Hill & Knowlton offices. Internal
documents confirm that Hill & Knowlton, and not independent scientists as
represented, actually ran the TIRC. In 1954, 35 staff members of Hill & Knowlton
worked full or part time for the TIRC. In that year, the TIRC, the purported
research firm, paid $477,955 - more than 50% of its entire budget - to Hill &
Knowlton, the public relations firm for the tobacco companies.
86.An April 15, 1968, Tobacco Institute memorandum describes its public
relations program and admits that, by virtue of its conduct, the Tobacco Institute
"may be subject to a finding that we are making false or misleading statements
to promote the sale of cigarettes." The memo was copied to, among other
tobacco executives, B&W attorney (and later CTR director) Addison Yeaman,
Reynolds' Charles Wade, and Reynolds' attorney, Henry Ramm.
D. SUPPRESSION AND CONCEALMENT OF INDUSTRY-SPONSORED
RESEARCH
87.Despite increasing internal knowledge of the dangers of cigarette
smoking, which they did not disclose, the Defendants continued, renewed and
repeated the representations and undertakings of the 1954 "Frank Statement to
Cigarette Smokers."
1. Role of CTR as a "Front"
88.In 1977, Addison Yeaman, Chairman and President of CTR, stated during
a public speech that "[CTR] has no propaganda function of any kind or any
degree." However, internal documents demonstrate that the Tobacco
Companies' joint efforts undertaken through TIRC, and later, through CTR, were
not disinterested or objective. Rather, they were designed and used to promote
favorable research, to suppress negative research when possible, and to attack
negative research where it could not be suppressed, all in order to convince the
public that the "case against smoking is [not] closed."(Wisconsin Complaint p
14-15)
89.A 1974 report to the CEO of Lorillard from a research executive described
CTR's scientific projects as having not been selected against specific scientific
goals, but rather for various purposes such as public relations, political relations,
position for litigation, etc. Thus, it seems obvious that reviews of such programs
for scientific relevance and merit in the smoking and health field are not likely to
produce high ratings.(Wisconsin Complaint p 14-15)
90.A 1972 internal document from a Tobacco Institute official to the group's
president describes the importance of using joint industry research to maintain
public doubt about the link between smoking and disease: For nearly twenty
years, this industry has employed a single strategy to defend itself on three
major fronts -- litigation, politics, and public opinion. While the strategy was
brilliantly conceived and executed over the years helping us win important
battles, it is only fair to say that it is not - nor was it ever intended to be - a
vehicle for victory. On the contrary, it has always been a holding strategy,
consisting of * creating doubt about the health charge without actually denying
it * advocating The public's right to smoke, without actually urging them to take
up the practice * encouraging objective scientific research as the only way to
resolve the question of the health hazard. As an industry, therefore, we are
committed to an ill-defined middle ground which is articulated by variations on
the theme that, 'the case is not proved.' In the cigarette controversy, the public
-- especially those who are present and potential supporters (e.g. tobacco state
congressmen and heavy smokers) -- must perceive, understand, and believe in
evidence to sustain their opinions that smoking may not be the causal factor.
As things stand, we supply them with too little in the way of ready-made credible
alternatives.(Wisconsin Complaint p 14-15)
91.A 1978 memo addressed to the CTR file from a Philip Morris official
characterized CTR as "an industry 'shield.'" The memorandum goes on to state,
"the 'public relations' value of CTR must be considered and continued . . . . It is
extremely important that the industry continue to spend their dollars on research
to show that we don't agree that the case against smoking is closed for 'PR'
purposes . . . ."(Wisconsin Complaint p 14-15)
92.In 1993, a former 24-year employee of CTR confirmed publicly that the
joint industry research efforts were not objective. "When CTR researchers found
out that cigarettes were bad and it was better not to smoke, we didn't publicize
that. The CTR is just a lobbying thing. We were lobbying for
cigarettes."(Wisconsin Complaint p 14-15)
93.This and other evidence demonstrates that the role and purpose of TIRC
and CTR in the Tobacco Companies' strategy was to seek to use the public's
trust to propagate "pro-tobacco" propaganda. An industry official wrote in his
personal notes describing a meeting that included high level officials from
various tobacco companies that, "CTR is the best & cheapest insurance the
tobacco industry can buy and without it the Industry would have to invent CTR
or would be dead."(Wisconsin Complaint p 14-15)
94.Nonetheless, in its annual reports published between 1985 and 1992, CTR
stated that its Science Advisory Board funded peer-reviewed research projects
"judging them solely on the basis of scientific merit and relevance." In 1994, Dr.
James F. Glenn, CEO of CTR, submitted testimony to the Waxman Subcommittee
stating that, "a. The Council . . . sponsors research into questions of tobacco
use and health and makes the results available to the public. b. [G]rantees are
assured complete scientific freedom in conducting these studies . . . .
[P]ublication [of research results] is encouraged in every instance."(Wisconsin
Complaint p 14- 15)
2. The Example of Dr. Homburger
95.In fact, CTR-sponsored research projects were directed away from
research that might add to the evidence against the use of tobacco products.
When CTR-sponsored research did produce unfavorable results the information
was distorted or simply suppressed. For example, Freddy Homburger, M.D., a
researcher in Cambridge, Massachusetts, undertook a study of smoke exposure
on hamsters. According to Dr. Homburger, he received a grant from CTR that
was changed half-way through the study to a contract "so they could control
publication -- they were quite open about that." Dr. Homburger has testified that
when the study was completed in 1974, the scientific director of CTR and a CTR
lawyer "didn't want us to call anything cancer" and that they threatened Dr.
Homburger with "never get[ting] a penny more" if his paper was published
without deleting the word cancer.
96.An internal CTR document describes how Dr. Homburger attempted to call
a press conference about the incident and how CTR stopped it:
He . . . was to tell the press that the tobacco industry was attempting to
suppress important scientific information about the harmful effects of
smoking. He was going to point specifically at CTR. . . . I arranged later
that evening for it to be canceled. Homburger was given a cordial
welcome and nicely hastened out the door. P.S. I doubt if you or Tom
will want to retain this note.
3. CTR Special Projects Division
97.Another mechanism that CTR used to suppress research results that
demonstrated the link between tobacco products and disease was to involve
lawyers selectively, and then invoke the attorney/client or work product privilege
to prevent the disclosure of harmful information. CTR used the term "special
projects" to refer to projects funded by CTR that did not get approved through
CTR's traditional peer review process but that were still desirable for the
industry's public relations and propaganda purposes. "Special projects" were
selected and monitored by industry lawyers to prevent disclosure if the results
were adverse to the industry position. One Philip Morris official characterized
CTR as a "front" for performing "special projects."
98.Notes prepared at a 1981 meeting of the Tobacco Companies' Committee
of General Counsel state:
When we started the CTR Special Projects, the idea was that the scientific
director of CTR would review a project. If he liked it, it was a CTR
special project. If he did not like it, then it became a lawyers' special
project. . . . [W]e were afraid of discovery for FTC and Aviado, we
wanted to protect it under the lawyers. We did not want it out in the
open.
99.A Tobacco Institute advertisement captioned "A Statement About Tobacco
and Health," states:
We recognize that we have a special responsibility to the public -- to help
scientists determine the facts about tobacco and health, and about certain
diseases that have been associated with tobacco use.
We accepted this responsibility in 1954 by establishing the Tobacco
Industry Research Committee, which provides research grants to
independent scientists. We pledge continued support of this program of
research until the facts are known.
We shall continue all possible efforts to bring the facts to light.
100.The Tobacco Industry used the Tobacco Institute to repeat their
deceptive claim that they promote the disclosure of relevant facts, "The Tobacco
Institute believes that the American public is entitled to complete, authenticated
information about cigarette smoking and health."
101.Additional representations were made in 1970 when the Tobacco
Companies, through the Tobacco Institute, placed a number of advertisements
similar to the 1954 "Frank Statement." One in particular touted the purported
independence of the tobacco industry- controlled CTR in an editorial-styled
advertisement, "The question about smoking and health is still a question:"
And the industry has committed itself to this task in the most objective
and scientific way possible. . . . Completely autonomous, CTR's research
is directed by a board of ten scientists and physicians. . . . This board has
full authority and responsibility for policy, development and direction of
the research effort.
E. SUPPRESSION AND CONCEALMENT OF
INTERNAL BIOLOGICAL RESEARCH
1. "Mouse House Massacre"
102.In the 1960's, RJR established a facility, nicknamed the "Mouse House,"
in Winston-Salem, North Carolina, to perform research on the health effects of
smoking using mice. Here, RJR scientists conducted research in a number of
specific areas, including studies of the mechanism whereby smoking causes
emphysema in the lungs.(WI complaint p. 17-19):
103.Although the RJR lab made significant progress in understanding this
mechanism, in 1970, RJR disbanded the entire research division in one day, and
fired all 26 scientists without notice.(WI complaint p. 17-19):
104.Several months before the 1970 closure and firings, RJR attorneys
collected dozens of research notebooks from the scientists. The notebooks still
have not been disclosed. One of the researchers later stated about RJR's
executives and lawyers that "they like to take the position that you can't prove
harm because you don't know mechanism . . . . And sitting right under their
noses is evidence of mechanism[.] What are they going to do with this stuff?
They decided to kill it."(WI complaint p. 17-19):
105.Internally, an RJR-commissioned report favorably described the "Mouse
House" work as "the more important of the smoking and health research effort
because it comes close to determining what was thought to be the underlying
pathobiology of emphysema." None of the work done at the "Mouse House" was
disclosed to the public.(WI complaint p. 17-19):
2. The "Safer Cigarette"
106.Several tobacco companies' biological research appears to have been
directed toward developing a cigarette with reduced health risks. These
companies performed research that involved dividing cigarette smoke into its
different chemical constituents, or "fractions," to discover which part of the
cigarette smoke causes disease. Several companies were successful in
discovering which constituents in tobacco smoke were carcinogens, or were
otherwise linked to diseases. This research was kept secret and never reported
to the public.(WI complaint p. 17- 19):
107.A number of companies also successfully removed certain harmful
constituents from cigarette smoke or treated the products to decrease the
harmful effects of such constituents, and developed prototype cigarettes with
reduced adverse health effects. These products were never marketed.(WI
complaint p. 17-19):
108.A memorandum written by an attorney at Shook, Hardy & Bacon
articulated the industry-wide position regarding the issue of a so-called "safer
cigarette." The 1987 memorandum, referring to the marketing by RJR of a
smokeless cigarette, Premier, stated that the smokeless cigarette could "have
significant effects on the tobacco industry's joint defense efforts" and that "[t]he
industry position has always been that there is no alternative design for a
cigarette as we know them." The attorney also noted that, "unfortunately, the
Reynolds announcement . . . seriously undercuts this component of the
industry's defense."(WI complaint p. 17-19):
109.As early as 1958, a memorandum from a Philip Morris researcher to the
company's Vice President of Research and Development ("R&D") proposed that
the company attempt to make a "safer cigarette" that could enable it to "jump on
the other side of the fence . . . on the issue of tobacco smoking and health . . .
."(WI complaint p. 17-19):
110.Although Philip Morris did undertake R&D of such a product, the
company never released the research, and never informed the public that
existing cigarettes were not safe or that a "safer cigarette" was possible. One
R&D presentation to Philip Morris's Board of Directors in 1964 states:
Two years ago, in anticipation of a health crisis to be precipitated by the
Smoking and Health Report of the Surgeon General's Committee, we
undertook to develop a physiologically superior cigarette. [W]e put
together a charcoal filter product with performance superior to anything
in the market place. That product was known as Saratoga.
Physiologically it was an outstanding cigarette. Unfortunately then after
much discussion we decided not to tell the physiological story which
might have appealed to a health conscious segment of the market. The
product as test marketed didn't have good 'taste' and consequently was
unacceptable to the public ignorant of its physiological superiority.(WI
complaint p. 17-19):
111.The R&D department at Philip Morris nonetheless viewed continued
research into "safer cigarettes" as necessary to compete in the event that
another cigarette company marketed a "safer cigarette." The presentation to the
Philip Morris Board of Directors continued, "The Research and Development
Department is working to establish a strong technological base with both
defensive and offensive capabilities in the smoking and health situation. Our
philosophy is not to start a war, but if war comes, we aim to fight well and to
win."(WI complaint p. 17-19):
a. Liggett's "Safer Cigarette:" XA
112.Liggett also developed a cigarette with reduced adverse health effects.
Company researchers believed that they had discovered which cigarette smoke
constituents were carcinogens, and found a way to remove them. Despite
Liggett's belief that the product was commercially marketable, the company
never marketed the cigarette and suppressed the research that led to its
development.
113.Liggett began its research by repeating the smoke condensate painting
studies of mice performed by Dr. Wynder through a contract with a consulting
firm. The consulting firm confirmed Dr. Wynder's findings, and as a result, in
1968, Liggett began "a tobacco additive program designed to reduce or eliminate
the tumorigenic activity of cigarette smoke."
114.Liggett initiated its safer cigarette project, called XA, in 1968. After a
minimal expenditure of only $14 million, Liggett was able, internally, to proclaim
the project a success in 1979. Company documents state, "[b]riefly, as a result
of 20 years effort in cooperation with [the consulting firm], we have developed
a cigarette system which produces smoke of reduced biological activity.
Additives has [sic] resulted in a product with lower carcinogenic effects . . . ."(IL
Complaint p21-22)
115.Liggett's "safer cigarette" was never marketed and the XA project was
abandoned. Liggett did so for two reasons. First, disclosing the feasibility of a
"safer cigarette" would imply that all existing cigarettes were not safe. Second,
Philip Morris apparently threatened Liggett with retaliation if Liggett violated the
industry agreement not to disclose negative information on use of tobacco
products and health. Liggett's Assistant Research Director, James Mold, M.D.,
reported that Liggett's President said that he was "told by someone in the Philip
Morris Company that if we tried to market such a product that they would clobber
us." b. Liggett, James Mold and Suppression of the XA Research
116.During the XA project, Liggett attempted to insulate the research by the
use of company lawyers. According to Dr. Mold, after 1975, "all meetings that
we had regarding this project were to be attended by a lawyer . . . . All paper that
was generated . . . [was] to be directed to the Law Department." Dr. Mold stated
that lawyers even collected all the notes after each meeting.
117.Dr. Mold stated that despite its significance, Liggett's lawyers not only
ultimately succeeded in stopping the project, but ordered him not to publish the
results of the research that led to the "safer cigarette." Only an abstract of the
paper, modified by the legal department, was published by the consulting firm,
without Dr. Mold's name.
118.When asked why Liggett never marketed the safer XA cigarette, Dr. Mold
explained that, "[Management circles] felt that such a cigarette if put on the
market would seriously indict them for having sold other types of cigarettes that
didn't contain this, for example. Or that they were carrying on this biological
research at the same time saying it meant nothing."
c. Liggett's "Safer Cigarette" Patent
119.Liggett had also obtained a patent for the process it had discovered to
produce its "safer cigarette." The patent application described the reduction in
cancer in mouse studies, prompting stories in the media that Liggett was the first
cigarette company to admit that smoking caused cancer. Liggett responded by
issuing a press release it called a "Liggettgram" which states:
Liggett and the cigarette industry continue to deny, as they have
consistently, that any conclusions can be drawn relating such test results
on mice in laboratories to cancer in human beings. It has never been
established that smoking is a cause of human cancer.
The laboratory experiments reported in the patent were conducted for
Liggett by an independent researcher, The Life Sciences Division of
Arthur D. Little, Inc.
120.Dr. Mold has estimated that, at the time Liggett made this statement,
Liggett had spent a total of $10 million on research involving mice, in part to
develop the XA cigarette. Liggett's internal reports on the benefit of the XA, and
the absence of increased risk of harm from the additives used, specifically used
animal studies as reliable indicators of the health effects of the product on
humans.
121.B&W also attempted to develop a so-called "safer cigarette." By the end
of the 1970's, however, B&W, in a pattern that was repeated throughout the
industry, halted all work on a "safer cigarette."
122.RJR also undertook efforts to develop a so-called "safer cigarette,"
focusing on delivering nicotine to the consumer without the harmful constituents
of tobacco smoke. In the late 1980's, RJR developed and test marketed Premier,
a smokeless and virtually tobacco-free cigarette, which was, in essence, a
nicotine delivery system. RJR ultimately abandoned development of Premier or
other "safer" cigarette products.
d. Suppression of Liggett's "Safer" Cigarette
123.In response to perceived growing demand, several companies
researched the possibility of marketing "safer" (less harmful to humans)
cigarettes. One of the ways in which the Defendants acted in concert to exclude
the products from the market and further excluded potential new entrants was
by patenting the processes for these less harmful products, which they neither
marketed nor licensed to any other actual or potential competitor.(IL complaint
p. 21-22):
124.In response to demand, Liggett was one of the Defendants who was
successful in researching and actually developing a less biologically active
cigarette. However, in response to retaliation and threats from co-conspirators,
Liggett agreed not to market this product after an apparent threat of retaliation
by another manufacturer.(IL complaint p. 21-22):
125.By applying an additive of palladium metal and magnesium nitrate to
tobacco to act as a catalyst in the burning process, Liggett found that "[c]igarette
tar has been neutralized" and that there was "[n]o evidence for new or increased
hazard . . . ."(IL complaint p. 21-22):
126.Using this process, Liggett was able to produce cigarettes "which are
believed to be of commercial quality." These cigarettes, however, were never
marketed.(IL complaint p. 21- 22):
127.Liggett abandoned its XA project for the reason, among others, that it
faced retaliation from industry leader Philip Morris if Liggett broke ranks. Another
reason for abandoning the project was fear that the marketing of a "safer"
cigarette would be, in essence, a confession that its, and the industry's other
cigarettes, were not safe. Thus, one Liggett executive wrote that, "[a]ny domestic
activity will increase risk of cancer litigation on existing products."(IL complaint
p. 21-22):
128.James Mold has provided testimony including the following overview of
the XA project and its abandonment:
a. Mold stated that the XA project produced a safer cigarette. He
stated, "We produced a cigarette which was, we felt,
commercially acceptable as established by some consumer tests,
which eliminated carcinogenic activity. . . ." [Emphasis added.]
b. Mold testified that after 1975, all meetings on the project were
attended by lawyers, lawyers collected all notes after the
meetings, and all documents were directed to the law department
to maintain the attorney-client privilege. He stated, "Whenever
any problem came up on the project, the Legal Department would
pounce upon that in an attempt to kill the project, and this
happened time and time again."
c. Mold testified that he was at a conference of scientists in Buenos
Aires prepared to present his research regarding a less harmful
cigarette when he received a "frantic call" from legal counsel and
was told not to present the paper or issue the press release. He
was instructed not to publish his results in the Journal of
Preventative Medicine.
d. Mold was asked why Liggett didn't market a safer cigarette. He
answered, "Well, I can't give you, you know, a positive statement
because I wasn't in the management circles that made the
decision, but I certainly had a pretty fair idea why. . . . [T]hey felt
that such a cigarette, if put on the market, would seriously indict
them for having sold other types of cigarettes that didn't contain
this, for example. Also, there was a meeting we held in . . . New
Jersey at the Grand Met headquarters. . . at which the various
legal people involved and the management people involved and
myself were present. At one point Mr. Dey who at that time, and
I guess still is the president of Liggett Tobacco, made the
statement that he was told by someone in the Philip Morris
company that if we tried to market such a product that they would
clobber us." [Emphasis added.] (IL complaint p. 21-22):
F. INDUSTRY RESEARCH ON NICOTINE AND KNOWLEDGE
THAT TOBACCO PRODUCTS ARE HARMFUL 1. History of Industry
Knowledge That Smoking is Harmful
129.Even before Defendants represented in the Frank Statement that "there
is no proof that cigarette smoking is one of the causes" of lung cancer, an
industry researcher had reported the contrary.(IL complaint p. 24)
130.As early as 1946, Lorillard chemist, H.B. Parmele, who later became Vice
President of Research and a member of Lorillard's Board of Directors, wrote to
his company's manufacturing committee, "Certain scientists and medical
authorities have claimed for many years that the use of tobacco contributes to
cancer development in susceptible people. Just enough evidence has been
presented to justify the possibility of such a presumption."(IL complaint p. 24)
131.After the 1954 "Frank Statement," the tobacco industry's breach of its
assumed duty to report objective facts on smoking and health was virtually
immediate. As evidence mounted, both through industry research and truly
independent studies, that cigarette smoking causes cancer and other diseases,
the tobacco industry continued publicly to represent that nothing was proven
against smoking. Internal documents show that the truth was very different. The
Tobacco Companies knew and acknowledged among themselves the veracity of
scientific evidence of the health hazards of smoking, and at the same time
suppressed such evidence where they could, and attacked it when it did
appear.(IL complaint p. 24)
132.Internal cigarette industry documents reveal, for example:
a. A 1956 memorandum from the Vice President of Philip Morris'
R&D Department to top executives at the company regarding the
advantages of "ventilated cigarettes" stated that, "Decreased
carbon monoxide and nicotine are related to decreased harm to
the circulatory system as a result of, smoking . . . . Decreased
irritation is desirable . . . as a partial elimination of a potential
cancer hazard."
b. A 1958 memorandum from a Philip Morris researcher to the
company's Vice President of Research, who later became a
member of its Board of Directors, stated "the evidence . . . is
building up that heavy cigarette smoking contributes to lung
cancer either alone or in association with physical and
physiological factors . . . ."
c. A 1961 document presented to the Philip Morris R&D Committee
by the company's Vice President of R&D included a section
entitled "Reduction of Carcinogens in Smoke." The document
states, in part:
To achieve this objective will require a major
research effort, because Carcinogens are found in
practically every class of compounds in smoke.
This fact prohibits complete solution of the
problem by eliminating one or two classes of
compounds.
The best we can hope for is to reduce a
particularly bad class, i.e., the polynuclear
hydrocarbons, or phenols . . . .
Flavor substances and carcinogenic substances
come from the same classes, in many instances.
d. A 1963 memorandum to Philip Morris' President and CEO from
the company's Vice President of Research describes a number of
classes of compounds in cigarette smoke which are "known
carcinogens." The document goes on to describe the link between
smoking and bronchitis and emphysema:
Irritation problems are now receiving greater
attention because of the general medical belief
that irritation leads to chronic bronchitis and
emphysema. These are serious diseases involving
millions of people. Emphysema is often fatal
either directly or through other respiratory
complications. A number of experts have
predicted that the cigarette industry ultimately
may be in greater trouble in this area than in the
lung cancer field.
e. A 1961 "Confidential" memorandum from the consulting
research firm hired by Liggett to do research for the company
states:
There are biologically active materials present in
cigarette tobacco. They are: a) cancer causing b)
cancer promoting, c) poisonous; d) stimulating,
pleasurable, and flavorful.
f. A 1963 memorandum from the Liggett consulting research firm
states:
Basically, we accept the inference of a causal
relationship between the chemical properties of
ingested tobacco smoke and the development of
carcinoma, which is suggested by the statistical
association shown in the studies of Doll and Hill,
Horn, and Dorn with some reservations and
qualifications and even estimate by how much the
incidence of cancer may possibly be reduced if the
carcinogenic matter can be diminished, by an
appropriate filter, by a given percentage.
133.These internal Liggett documents sharply contrast with the information
Liggett provided to the Surgeon General in 1963. Liggett withheld from the
Surgeon General the views of its researchers and consultants that the evidence
shows cigarette smoking causes human disease. A "Draft of an Outline for a
Background Paper on the Smoking Problem to be Used in Connection with a
Presentation of Arguments Before the Surgeon General's Committee" states:
a. "All Types of Smoking are Associated with Increased Mortality
from all causes combined . . ."
b. "For cigarette smokers who smoke regularly, excess mortality
increases with current number of cigarettes smoked . . . ."
c. "Lung cancer extremely rare among nonsmokers . . . ."
d. As "reported by Hammond . . . Excess Mortality [is] (1) higher
for cigarette smokers than others and (2) increases with daily
cigarette consumption."
e. "For both sexes, all chronic respiratory diseases, chronic
bronchitis, irreversible obstructive lung diseases . . . increased in
prevalence with increasing current amount of smoking."
[Emphasis in original.](IL complaint p. 24)
134.The report Liggett presented to the Surgeon General did not contain any
of these conclusions, and instead, focused on alternative causes of disease,
such as air pollution, coffee and alcohol consumption, diet, lack of exercise, and
genetics. Liggett criticized the known statistical association between smoking
and mortality and various diseases as based upon "unreliably conducted"
studies and "inadequately analyzed" data. The Liggett report concluded that the
association between smoking and disease was inconclusive, and was in fact due
to other factors coincidentally associated with smoking.(IL complaint p. 24)
135.Philip Morris also concealed from the public its actual views of the
research conducted outside the influence of the industry. A 1971 memorandum
written by Helmut Wakeham, M.D., then Vice President of R&D, discussed a
recent study which found cigarette smoke inhalation caused lung cancer in
beagles:
1970 might very properly be called the year of the beagle. Early in the
year, the American Cancer Society announced that they had finally
demonstrated the formation of lung cancer in beagles by smoke
inhalation in the now infamous Auerbach and Hammon study. I am sure
all of you have read extensively about this in the newspapers, how the
industry asked to have independent panel of pathologists review the
histological sections showing cancer, how the Society refused, how
generally the ACS was put on the defensive, how publication was refused
by two medical journals and how the story was changed somewhat by the
time it was published . . . .(IL complaint p. 24)
136.The memorandum goes on to describe how the industry publicly
dismissed the mice cancer studies, such as the 1953 Wynder research. Dr.
Wakeham explained that "mouse skin is not human lung tissue," "smoke
condensate has different chemical composition from inhaled smoke," and
"painting is not the method of application practised [sic] by human smokers."(IL
complaint p. 24)
137.In contrast to the mice studies, however, Dr. Wakeham continued:
The logical extension of these objections is that an inhalation test in
which an animal breathed smoke like a human would be a better model
system. Presumably, in such a test, the formation of lung cancers in the
test animal would be strong evidence for the cigarette causation
hypothesis. That is why the beagle test was a critical one . . . . So the test
was not conclusive. But it was a lot closer than skin painting.
The strong opposition of the industry to the beagle test is indicative of a
new more aggressive stance on the part of the industry in the smoking
and health controversy. We have gone over from what I have called the
'vigorous denial' approach, the take it on the chin and keep quiet attitude,
to the strongly voiced opposition and criticism. I personally think this
counter-propaganda is a better stance than the former one.(IL complaint
p. 24)
138.Taken together with the internal acknowledgments of cigarette smoking
as a cause of human disease, this memorandum from a senior Philip Morris
researcher demonstrates that the 1954 "Frank Statement" representations were
deceptions, and that the cigarette industry promptly breached the duties it had
undertaken. Far from "accept[ing] an interest in people's health as a basic
responsibility, paramount to every other consideration in our business" and
"cooperat[ing] closely with those whose task it is to safeguard the public health,"
the cigarette industry approach was to deny and attack with
"counter-propaganda" the mounting evidence that smoking caused human
disease -- evidence that the industry plainly viewed internally as accurate.(IL
complaint p. 24)
139.Recently, a series of B&W documents were publicly disclosed which set
forth the far-ranging deceptions of that company in particular, and of the industry
in general with respect to the harmful effects of smoking.(IL complaint p. 24)
140.B&W, like the other manufacturers, was aware early on of the dangers
of cigarettes. Indeed, a B&W review of published statistical research, including
the 1952 report by Dr. Doll, noted that the studies offered "frightening testimony
from epidemiological studies."(IL complaint p. 24)
141.By 1957, one of B&W's British affiliates, which conducted much of the
health research for the U.S. company, was using the code-name "zephyr" for
cancer. For example, in a March, 1957 report, the British affiliate stated, "As a
result of several statistical surveys, the idea has arisen that there is a causal
relation between zephyr and tobacco smoking, particularly cigarette smoking."(IL
complaint p. 24)
142.In 1962, B&W's London-based parent company conducted a meeting of
its worldwide subsidiaries in Southampton, England. A transcript of the meeting
reveals the following remarks:
a. One researcher stated that "smoking is a habit of addiction" and
that "[n]icotine is not only a very fine drug, but the technique of
administration by smoking has considerable psychological
advantages." (Several years later, in 1967, the researcher
admitted that the company "is in the nicotine rather than the
tobacco industry.")
b. Another research executive "thought we should adopt the attitude
that the causal link between smoking and lung cancer was proven
because then at least we could not be any worse off."
c. Another researcher stated that "no industry was going to accept
that its product was toxic, or even believe it to be so, and
naturally when the health question was first raised, we had to start
denying it at the P.R. level. But by continuing that policy, we had
got ourselves into a corner and left no room to maneuver. In
other words, if we did get a breakthrough and were able to
improve our product, we should have to about-face, and this was
practically impossible at the P.R. level."
d. The chairman of B&W's British affiliate stated that it "was very
difficult when you were asked as chairman of a tobacco company
to discuss the health question on television. You had not only
your own business to consider but the employees throughout the
industry, retailers, consumers, farmers growing the leaf, and so
on. And you were in much too responsible a position to get up
and say, 'I accept that the product which we and all our
competitors are putting on the market gives you cancer,' whatever
you might think privately."
e. The chairman also stated that if the company manufactured safer
brands, "how to justify continuing the sale of other brands? . . .
It would be admitting that some of its products already on the
market might be harmful. This would create a very difficult
public relations situation."(IL complaint p. 24)
143.In 1963, B&W engaged in an internal debate over whether to disclose
what it knew about the adverse effects of smoking to the Surgeon General, who
was preparing the first official report on cigarettes. It was decided that its
information would not be disclosed. Some of the documents generated by B&W
as part of this process were shared with its London-based parent company, as
well as other cigarette manufacturers and the TIRC/CTR.(IL complaint p. 24)
144.Addison Yeaman wrote in a 1963 analysis that:
a. "[N]icotine is addictive."
b. "We are, then, in the business of selling nicotine, an addictive
drug . . ."
c. Cigarettes "cause, or predispose, lung cancer . . ."
d. "They contribute to certain cardiovascular disorders . . ."
e. "They may well be truly causative in emphysema, etc."
145.Yeaman suggested that B&W "accept its responsibility" and disclose the
hazards of cigarettes to the Surgeon General. He noted that this would allow the
company to openly research and develop a safer cigarette.
146.Yeaman warned, however, that one danger of candid disclosure was that
jurors would learn that the cigarette companies knew of the hazards of their
products and had the means to make safer cigarettes -- but didn't. Yeaman
noted that this might cause an "emotional reaction" in jurors. Ultimately,
Yeaman's suggestion for full disclosure was rejected.
147.Subsequently, B&W continued to conduct and conceal biological
research. Some of these research projects confirmed causation.
148.The more sensitive research was often undertaken by B&W's British
affiliate, acting on behalf of both companies. Much of the work was performed
at a British laboratory called Harrogate, which performed work for a number of
cigarette manufacturers, and some of this research was shared with these other
companies and the Tobacco Institute.
149.B&W also attempted to develop a safer cigarette or, in the words of an
internal document, "a device for the controlled administration of nicotine." There
were at least two safer cigarette projects, Project Ariel, which focused on heating
rather than burning tobacco, and Project Janus, which focused on isolating and
removing the harmful elements of tobacco. At least some of the work was
performed by Battelle Laboratories in Frankfurt. By the end of the 1970's,
however, in a pattern that was repeated throughout the industry, B&W closed its
research labs and halted work on a safer cigarette.
2. Industry Knowledge that Nicotine Is Addictive
150.Tobacco companies have known since at least the early 1960's of the
addictive properties of the nicotine contained in the tobacco products they
manufacture and sell. Industry documents are replete with evidence of such
knowledge:(WI complaint, p. 21)
a. In 1962, Sir Charles Ellis, scientific advisor to the board of
directors of BAT, stated at a meeting of BAT's worldwide
subsidiaries, that "smoking is a habit of addiction" and that
"[n]icotine is not only a very fine drug, but the technique of
administration by smoking has considerable psychological
advantages . . . ." He subsequently described B&W as being "in
the nicotine rather than the tobacco industry."
b. A research report from 1963 commissioned by B&W describes
the results if a chronic tobacco products user is denied nicotine:
"A body left in this unbalanced state craves for renewed drug
intake in order to restore the physiological equilibrium. This
unconscious desire explains the addiction of the individual to
nicotine."
c. Addison Yeaman, general counsel at B&W, summarized his view
about nicotine in an internal memorandum, also in 1963:
"Moreover, nicotine is addictive. We are, then, in the business of
selling nicotine, an addictive drug effective in the release of stress
mechanisms."
d. Internal reports prepared by Philip Morris in 1972 and the Philip
Morris U.S.A. Research Center in March 1978, demonstrate
Philip Morris's understanding of the role of nicotine in tobacco
use: "We think that most smokers can be considered nicotine
seekers, for the pharmacological effect of nicotine is one of the
rewards that come from smoking. When the smoker quits, he
foregoes [sic] his accustomed nicotine. The change is very
noticeable, he misses the reward, and so he returns to smoking."
e. From 1940 to 1970, the ATC conducted its own nicotine research,
funding, in whole or in part, over 90 studies on the
pharmacological and other effects of nicotine on the body. This
research constituted 80% of all biological studies funded by ATC
over this period. From its earliest work, ATC understood that
nicotine had addictive qualities. In a 1945 study summarized in
an ATC report on its research, 24 smokers were given cigarettes
with extremely low levels of nicotine. The study showed that 12
of the subjects "definitely missed the nicotine" and 9 of the
subjects continued to do so throughout the one month period of
the study. The study concluded that "with some individuals,
nicotine becomes a major factor in the cigarette habit."
f. In an April 14, 1972 document entitled "RJR CONFIDENTIAL
RESEARCH PLANNING MEMORANDUM ON THE
NATURE OF THE TOBACCO BUSINESS AND THE
CRUCIAL ROLE OF NICOTINE THEREIN," an RJR executive
wrote:
In a sense, the tobacco industry may be thought of
as being a specialized, highly ritualized, and
stylized segment of the pharmaceutical industry.
Tobacco products uniquely contain and deliver
nicotine, a potent drug with a variety of
physiological effects . . . . Thus a tobacco product
is, in essence, a vehicle for delivery of nicotine,
designed to deliver the nicotine in a generally
acceptable and attractive form. Our industry is
then based upon design, manufacture and sale of
attractive dosage forms of nicotine, and our
Company's position in our Industry is determined
by our ability to produce dosage forms of nicotine
which have more overall value, tangible or
intangible, to the consumer than those of our
competitors . . . .
Therefore, in addition to competing with products
of the tobacco industry, our products may, in a
sense, compete with a variety of other products
with certain types of drug action.
g. In a 1972 memorandum on product development, U.S. Tobacco
noted that a particular focus should be on assuring adequate
"nicotine satisfaction." In a 1981 memorandum, PerErik
Lindqvist, U.S. Tobacco Senior Vice President of Marketing set
out the criteria for a new smokeless tobacco product: "Flavorwise
we should try for innovation, taste and strength. Nicotine should
be medium, recognizing the fact that virtually all tobacco usage
is based upon nicotine, 'the kick,' satisfaction."
Asked to later explain this statement, Lindqvist admitted: "All
tobacco products contain nicotine. Nicotine gives the consumer
satisfaction. Some would describe it as a pleasant feeling. Others
would describe it as a kick . . . . Others would describe it as a
relaxing feeling."
151.RJR CEO, F. Ross Johnson, was quoted in the Wall Street Journal on
October 6, 1994, as saying, "Of course it's addictive. That's why you smoke the
stuff."(WI complaint, p. 21-22)
152.Numerous Tobacco Company documents contain statements by
company researchers and executives acknowledging that nicotine is, in fact,
addictive. For example, more than thirty years ago, a report was completed for
BATCO that specifically addressed the mechanism of nicotine addiction in
smokers. The researchers concluded that chronic intake of nicotine, such as that
which occurs in regular smokers, creates a need for ever-increasing levels of
nicotine to maintain the desired action, "[u]nlike other dopings, such as
morphine, the rate of increasing demand for greater dose levels is relatively slow
for nicotine." The report states, "A body left in this unbalanced state craves for
renewed drug intake in order to restore the physiological equilibrium. This
unconscious desire explains the addiction of the individual to nicotine."(IL
complaint p. 28)
153.Internal Tobacco Company documents reveal that all of this research has
convinced company researchers and executives that nicotine in tobacco
functions as a drug with powerful psychoactive effects. For example, in 1962,
even before much of this research had been completed, Charles Ellis, of BATCO,
expressed his view that nicotine in tobacco functions as a drug much like
stimulants and tranquilizers:
It is my conviction that nicotine is a very remarkable beneficent drug that
both helps the body to resist external stress and also can as a result show
a pronounced tranquilising [sic] effect. You are all aware of the very
great increase in the use of artificial controls, stimulants, tranquilisers
[sic], sleeping pills, and it is a fact that under modern conditions of life
people find that they cannot depend just on their subconscious reactions
to meet the various environmental strains with which they are confronted:
they must have drugs available which they can take when they feel the
need. Nicotine is not only a very fine drug, but the techniques of
administration by smoking has considerable psychological advantages
and a built-in control against excessive absorption. [Emphasis added.](IL
complaint p. 28)
154.In the decades that followed this statement, BATCO and Brown and
Williamson held many research conferences, some of which were devoted
entirely to discussing nicotine's pharmacological effects. The records of these
conferences demonstrate that, at almost every conference, Tobacco Company
officials from around the world discussed the results of research on nicotine
pharmacology and reached agreement that nicotine had been shown to have
pharmacological effects on tobacco users.(IL complaint p. 28)
155.Researchers and executives from the other major Tobacco Companies
and associated with the CTR have also made statements revealing their
knowledge that nicotine is a psychoactive drug. For example, the authors of a
research paper funded by the CTR reporting on the "beneficial" pharmacological
effects of nicotine in cigarettes said that "[n]icotine is recognized as the primary
psychoactive compound in cigarette smoke."(IL complaint p. 28)
156.In 1962-63, BATCO received the results of its Project HIPPO study
(HIPPO I and HIPPO II), the aim of which was to "understand some of the
activities of nicotine -- those activities that could explain why smokers are so
fond of their habit." A second purpose of the Project HIPPO study was to
compare the effects of nicotine with those of then-new tranquilizers, "which
might supersede tobacco habits in the near future." Thus, these researchers
believed that nicotine-containing tobacco and tranquilizers were used for the
same purposes by consumers.(IL complaint p. 28)
157.The Project HIPPO reports were disseminated to officials of Brown and
Williamson ("B&W"). The exchange of information between BATCO and B&W is
important because it demonstrates B&W's awareness of the results of studies
such as Project HIPPO, which was just one of a number of studies commissioned
by BATCO to study the physiological and pharmacological effects of nicotine.
One 1980 report addresses the critical role of nicotine's drug effects:
Nicotine is an extremely biologically active compound capable of
eliciting a range of pharmacological, biochemical, and physiological
responses . . . . In some instances, the pharmacological response of
smokers to nicotine is believed to be responsible for an individual's
smoking behavior, providing the motivation for and the degree of
satisfaction required by the smoker.
158.The BATCO documents include not only some of the research reports
themselves, but also summaries or minutes of numerous BATCO R&D meetings
at which nicotine's drug effects and importance to the industry were discussed.
These papers demonstrate both the consistency and the extent of the industry's
interest in and knowledge of nicotine as the primary pharmacological agent in
tobacco. At a 1974 BATCO Group R&D Meeting, it was noted that, "Nicotine
(which has been assumed to be the main pharmacologically active component
in smoke) may act in a bi-phasic manner, either as a stimulant (CNV increase) or
depressant (CNV decrease)."(IL complaint p. 28)
159.Subsequent BATCO research conferences offer equally revealing
statements about the drug effects of nicotine. A BATCO Group R&D Smoking
Behavior-Marketing Conference held in 1984 focused almost entirely on the role
of nicotine pharmacology in smoking. Summaries of the presentations at that
conference include numerous references to the pharmacological effects of
nicotine and the importance of these effects in maintaining tobacco use. For
example, one presentation included the following observation:
Smoking is then seen as a personal tool used by the smoker to refine his
behavior and reactions to the world at large.
It is apparent that nicotine largely underpins these contributions through
its role as a generator of central physiological arousal effects which
express themselves as changes in human performance and psychological
well-being. [Emphasis added.](IL complaint p. 28)
160.Another BATCO conference focusing on nicotine was held in 1984. One
of the presentations was characterized by a Brown and Williamson official:
The presentation was concerned with summarizing and outlining the
central role of nicotine in the smoking process and our business generally
. . . . There are two areas of nicotine action that are of primary
importance: (i) to identify to what extent the pharmacological properties
or responses to nicotine are influenced by blood and tissue levels of
nicotine. (ii) what is the significance and role of nicotine in eliciting the
impact response and upper respiratory tract responses . . . [Emphasis
added.](IL complaint p. 28)
161.Philip Morris researchers conducted extensive research on nicotine
pharmacology from the late 1960's until at least the mid-1980's. The nature and
magnitude of the research, as well as statements made in internal documents,
show that the Philip Morris researchers strongly believed that nicotine has potent
psychoactive effects and that these effects provide a primary motivation for
smoking. In 1974, Philip Morris researchers began a study designed to test their
theory that hyperkinetic children take up smoking in adolescence because
nicotine may perform the same pharmacological function as prescription
medications used to treat hyperkinesis:
It has been found that amphetamines, which are strong stimulants, have
the anomalous effect of quieting these children down . . . Many children
are therefore regularly administered amphetamines throughout grade
school years . . . . We wonder whether such children may not eventually
become cigarette smokers in their teenage years as they discover the
advantage of self-stimulation via nicotine. We have already collaborated
with a local school system in identifying some such children in the third
grade. [Emphasis added.](IL complaint p. 28)
162.More than three decades ago, in 1961, a presentation by Dr. Wakeham
to Philip Morris's R&D Committee noted that, "Low nicotine doses stimulate, but
high doses depress functions . . . It is also recognised [sic] that smoking
produces pleasurable reactions or tranquility, and that this is due at least in part
to nicotine . . . ."(IL complaint p. 28)
163.Dr. Wakeham also noted that "nicotine is believed essential to cigarette
acceptability," a view later restated by William Dunn, Jr., M.D., another
high-ranking Philip Morris official. In summarizing a 1972 conference sponsored
by the CTR, Dr. Dunn reported, "Most of the conferees would agree with this
proposition: The primary incentive to cigarette smoking is the immediate salutary
effect of inhaled smoke upon body function." [Emphasis added.](IL complaint
p. 28)
164.After describing "the physiological effect" as "the primary incentive" for
smoking, Dr. Dunn continued:
The majority of the conferees would go even further and accept the
proposition that nicotine is the active constituent of cigarette smoke.
Without nicotine, the argument goes, there would be no smoking. Some
strong evidence can be marshalled [sic] to support this argument:
1) No one has ever become a cigarette smoker by
smoking cigarettes without nicotine.
2) Most of the physiological responses to inhaled smoke
have been shown to be nicotine-related.
3) Despite many low nicotine brand entries in the market
place, none of them have captured a substantial segment
of the market . . . [Emphasis added.](IL complaint p. 28)
165.A 1971 secret internal report distributed to Philip Morris executives
shows that tobacco executives knew the powerfully addictive nature of nicotine
in cigarettes. The report studied persons who had tried to stop smoking and
concluded that only 28% of those who tried to quit were still non-smokers eight
months later:
Even after eight months quitters were apt to report having neurotic
symptoms, such as feeling depressed, being restless and tense, being
ill-tempered, having a loss of energy, being apt to doze off. They were
further troubled by constipation and weight gains which averaged about
five pounds per quitter . . . This is not the happy picture painted by the
Cancer Society's anti-smoking commercial which shows an exuberant
couple leaping into the air and kicking their heels with joy because
they've kicked the habit. A more appropriate commercial would show a
restless, nervous, constipated husband bickering viciously with his bitchy
wife who is nagging him about his slothful behavior and growing
waistline.(IL complaint p. 28)
166.In a research paper funded by the CTR, reporting on the "beneficial"
pharmacological effects of nicotine in cigarettes, the authors said, "Nicotine is
recognized as the primary psychoactive compound in cigarette smoke."(IL
complaint p. 28)
167.Many other industry documents refer to the central role of nicotine's
drug effects for smokers and, therefore, for the industry. Nicotine is repeatedly
identified as a primary reason consumers smoke or use other nicotine-containing
products. A "Proposal for Low Delivery Project for B&W" prepared by a
marketing firm for B&W in the late 1970's contained the following statement that
a sufficient dose of nicotine is essential to sell cigarettes and, implicitly, to
maintain market share based on nicotine addiction:
Current market trends clearly indicate a major trend toward low-tar
brands although current "ultra" low "tar" brands have had limited success
because of their failure to delivery is that if a satisfying, low-nicotine
cigarette were to be developed, it could represent an effective means of
withdrawal . . . with severe implications for long-term market growth.
[Emphasis added.](IL complaint p. 28)
168.A 1976 BATCO Conference on Smoking Behavior further underscores
tobacco industry researchers' awareness of the fundamental importance (to the
huge majority of smokers) of nicotine's effects on the brain, "Some insight into
the likely benefits of smoking follows from a consideration of the properties of
nicotine, which is considered to be the reinforcing factor in the smoking habit for
at least 80% of smokers . . ." [Emphasis added.](IL complaint p. 28)
169.In 1988, Joseph F. Cullman III, former CEO of the Philip Morris Tobacco
Company, testified in the case of Cipollone v. Liggett, as follows:
Q: Let me ask you the question, then, Mr. Cullman. Is nicotine a
drug?
A: Well it's so described in every book on pharmacology.
Q: So then you agree that it's a drug?
A: I have no reason to disagree with books on pharmacology.(IL complaint
p. 28)
170.A memorandum from a Philip Morris official in 1980 confirms the
company's view that nicotine's pharmacological effects on the central nervous
system are critical to the tobacco industry's success:
Nicotine is a powerful pharmacological agent with multiple sites of
action and may be the most important component of cigarette smoke.
Nicotine and an understanding of its properties are important to the
continued well being of our cigarette business since this alkaloid has been
cited often as 'the reason for smoking' and theories have been advanced
for 'nicotine titration' by the smoker. Nicotine is known to have effects
on the central and peripheral nervous system as well as influencing
memory, learning, pain perception, response to stress and level of arousal.
[Emphasis added.](IL complaint p. 28)
171.Despite the 1994 sworn testimony of tobacco CEOs that nicotine is not
addictive, it is clear that high-ranking tobacco company officials have repeatedly
acknowledged that nicotine is addictive and that this is the reason why people
use tobacco.(IL complaint p. 28)
172.The smokeless tobacco industry also recognizes that almost all
consumers use tobacco products to obtain the pharmacological effects of
nicotine. The senior vice-president for marketing of U.S. Tobacco wrote in a 1981
letter on new product development, "Flavor wise we should try for innovation,
taste and strength, nicotine should be medium . . . Virtually all tobacco usage
is based upon nicotine, "the kick," satisfaction."
173.A 1958 memorandum from a Philip Morris researcher to the company's
Vice President of Research, states, "the evidence is building up that heavy
cigarette smoking contributes to lung cancer either alone or in association with
physical and physiological factors."
174.A 1961 document presented to the Philip Morris R&D Committee by the
company's Vice President of R&D included a section entitled "Reduction of
Carcinogens in Smoke," states in part, ". . . [c]arcinogens are found in practically
every class of compounds in smoke. This fact prohibits complete solution of the
problem by eliminating one or two classes of compounds . . . ."
175.Many other industry documents refer to suspected and known
cancer-causing effects of tobacco use, and the highly addictive nature of
nicotine.
176.A scientific advisor to BATCO, B&W's parent company, stated in 1962 to
the company's board of directors that "smoking is a habit of addiction."
177.Internal reports prepared by Philip Morris in 1972 and the Philip Morris
U.S.A. Research Center in 1978 state, "we think that most smokers can be
considered nicotine seekers, for the pharmacological effect of nicotine is one of
the rewards that come from smoking."
178.Philip Morris researchers conducted extensive research on nicotine
pharmacology from the late 1960's until at least the mid 1980's. The nature and
magnitude of the research, as well as statements made in internal documents,
show that Philip Morris researchers strongly believed that nicotine has addictive
effects.
179.A 1980 memorandum from a Philip Morris official confirms the
company's view that nicotine's pharmacological effects on the central nervous
system are critical to the tobacco industry's success, "Nicotine is a powerful
pharmacological agent . . . and may be the most important component of
cigarette smoke. Nicotine and an understanding of its properties are important
to the continued well-being of our business."
3. Long-Standing Industry Awareness of the Difficulty
Smokers Have in Quitting Underscores the Tobacco
Companies' Knowledge of Addiction
180.The strongest evidence of the addictive power of nicotine is the fact that
a substantial majority of smokers (75% to 85% in most surveys) say they would
like to quit, and that they are concerned for their health, yet a vast majority of
those who attempt to quit are unable to do so. The failure rate of people who
attempt to stop or reduce smoking is dramatic, even in the face of
life-threatening tobacco related illnesses. Thus, even after a heart attack or lung
cancer surgery, approximately one-half of survivors return to smoking within one
year. A study of drug use by high school seniors conducted annually by the
University of Michigan shows that of high school seniors who smoke, more than
half have tried unsuccessfully to quit. Follow-up surveys show that eight years
later three of four are still smoking, and those still smoking are smoking more
heavily. As a result of these characteristics and others, the FDA in 1995 found
that "nicotine satisfies the classic criteria for an addictive substance."(IL
complaint p. 32):
181.The Tobacco Companies are aware of the large number of smokers who
have tried to quit using tobacco, and of the very small number who actually
succeed. The evidence known to the Tobacco Companies about smokers'
unsuccessful attempts to quit shows that the Tobacco Companies know that a
large percentage of their market consists of people who demonstrate one of the
characteristic features of addiction.(IL complaint p. 32):
182.The great difficulty smokers experience when they try to quit was
conceded by Mr. Cullman when he testified as follows in the Cipollone case:
Q. But it is difficult [to quit]?
A. That's what it says here and I'm not disagreeing with it.
Q. They said it was very difficult. Do you agree with that?
A. I would say it's difficult.
Q. And it's difficult for the vast majority of smokers, you
would agree with that, too, would you not?
A. That's a question of semantics. What's the vast majority? A lot
of smokers have a hard time quitting [sic].
Q. Let's see, most smokers have a tough time giving up cigarettes?
A. Well, if they didn't, there would be many fewer smokers than
there are today. [Emphasis added.] (IL complaint p. 32):
183.A presenter responsible for summing up the results of cessation studies
at a 1984 BATCO conference agreed that, while a large percentage of smokers
do not want to smoke, most of those smokers feel compelled to continue to
smoke:
Although intentions and attempts to quit are relatively high (30-40% of
smokers [in a given year]), the actual success rate of quitting is relatively
low and stable.
It was thus well known to the participating companies that a very large
percentage of their customers were smoking not out of choice but because
they could not quit.(IL complaint p. 32):
184.Other companies also understand that many of their consumers would
like to quit but are unable to do so. A Philip Morris researcher who studied a
"cold turkey" campaign in the small Iowa town of Greenfield in 1969 reported that
those who succeed in quitting smoking over the long term are a much smaller
group than those who would like to quit and who attempt to quit. The researcher
cited the findings of Hunt and Matarazzo in proposing that most attempts to quit
smoking are not long-lasting, "[I]n summarizing many reports of long-term
quitting using various techniques, [the authors] show that the percentage of
nonrecidivists [successful quitters] decreases as a function of time . . . in a
negatively accelerated fashion." The Philip Morris researcher found that in
Greenfield only 28% of those smokers who agreed to quit as part of the "cold
turkey" campaign were still not smoking after 7 months. The researcher then
observed that the small number of Greenfield residents who managed to stay off
cigarettes for more than 7 months was, based on other published reports of
success rates for quitting smoking, about average.(IL complaint p. 32)
185.The researcher also described findings that revealed in part why it is so
hard for smokers to quit. He reported that smokers who quit for more than 7
months continued to suffer a variety of adverse effects related to quitting,
including weight gain, restlessness, depression, ill-temper, constipation, nervous
mannerisms, and loss of energy. These are some of the classic symptoms of
nicotine withdrawal, described earlier.(IL complaint p. 32):
186.Market research documents also show that the Tobacco Companies have
conducted research in quitting behavior and have documented the reasons why
people quit and why they fail to quit, despite a desire to do so. A market
research firm reporting on a survey of smokers' views about the health
implication of smoking observed that:
a minority expresses a resentment about the addictive aspects of smoking.
Being "out of control," unable to quit causes them to feel somehow
unworthy . . . . Nicotine is usually singled out as the culprit here.
However, even these smokers would be reluctant to give up the
satisfaction elements in smoking. So they are in a quandry [sic].
Another market research firm reported its findings about the inability of
young smokers to quit when they want to:
However intriguing smoking was at 11, 12 or 13, by the
age of 16 and 17 many regretted their use of cigarettes for
health reasons and because they feel unable to stop
smoking when they want to.(IL complaint p. 32)
187.The fact that many smokers smoke even though they do not enjoy
smoking is conceded in a candid marketing research document prepared for
Imperial Tobacco Ltd., which reported that it is particularly difficult to sell
cigarettes by "trading on the positives" because the industry is "vexed by the
unique problem that users of the category do not necessarily like the product."
Another document reports that many smokers of ultra-low tar and nicotine
cigarettes want to quit and "refer to their behavior in terms of 'satisfying a
craving' while smokers of stronger cigarettes talk about taste and
satisfaction."(IL complaint p. 32):
188.In summary, the Tobacco Companies' data show that users find it
extremely difficult to quit smoking and that many tobacco users would quit if
they could. Their data also show that, of those smokers who try to quit, only a
small percentage succeed permanently. Consequently, tobacco manufacturers
are aware that the large percentage of their customers who try to quit but fail
continue to buy and use tobacco products, in large part to satisfy their
dependence on nicotine-containing tobacco. Despite this overwhelming
knowledge, the Defendants have misrepresented and suppressed the truth
regarding nicotine and addiction. Instead, they have falsely claimed that this is
simply a matter of individual choice.(IL complaint p. 32)
4. Suppression and Concealment of Research
on Nicotine Addiction
189.The tobacco companies, rather than fulfilling their promise to the public
to disclose material information about the use of tobacco products and health,
chose a course of suppression, concealment and disinformation about the true
properties of nicotine and the addictiveness of using tobacco products.(WI
complaint, p. 24-25; IL complaint, p. 34)
190.In 1980, Philip Morris hired Victor DeNoble, M.D. to study nicotine's
effects on the behavior of rats and to research and test potential nicotine
analogues. Dr. DeNoble carried out his research with Dr. Paul C. Mele, a
behavioral pharmacologist from the University of Wisconsin.(WI complaint, p.
24-25; IL complaint, p. 34)
191.Drs. DeNoble and Mele discovered that nicotine met two of the hallmarks
of potential addiction -- self-administration (rats would press levers to inject
themselves with a nicotine solution) and tolerance (a given dose of nicotine over
time had a reduced effect).(WI complaint, p. 24-25; IL complaint, p. 34)
192.Philip Morris instructed Drs. DeNoble and Mele to keep their work secret,
even from fellow Philip Morris scientists. Test animals were delivered at dawn
and brought from the loading dock to the laboratory under cover. Memos,
notebooks, external communications and internal reports were increasingly
scrutinized, revised and censored by Philip Morris management to make sure
that no sensitive terms such as "addictive" were being incorporated into any of
the company's written documentation.(WI complaint, p. 24-25; IL complaint, p. 34)
193.Dr. DeNoble was later told by the company that the data he and Dr. Mele
were generating could be damaging. Philip Morris executives began talking of
killing the research or moving it outside of the company so Philip Morris would
have more freedom to disavow the results.(WI complaint, p. 24-25; IL complaint,
p. 34)
194.In August, 1983, Philip Morris ordered Dr. DeNoble to withdraw from
publication a research paper on nicotine that had already been accepted for
publication after peer review by the journal Psychopharmacology. According to
Dr. DeNoble, the company changed its mind because it did not want its own
research to compromise the company's defense asserted in litigation recently
filed against it. Philip Morris officials had interpreted the suppressed nicotine
studies as showing that, in terms of addictiveness, "nicotine looked like
heroin."(WI complaint, p. 24-25; IL complaint, p. 34)
195.In April, 1984, Philip Morris closed Dr. DeNoble's nicotine research lab.
Drs. DeNoble and Mele were forced abruptly to halt their studies, turn off all their
instruments and turn in their security badges by morning. Philip Morris
subsequently threatened them with legal action if they published or talked about
their nicotine research. According to Dr. DeNoble, the lab literally vanished
overnight. The animals were killed, the equipment was removed and all traces of
the former lab were eliminated.(WI complaint, p. 24-25; IL complaint, p. 34)
196.Dr. DeNoble later testified to the Waxman Subcommittee that "senior
research management in Richmond, Va., as well as top officials at the Philip
Morris Company in New York, continually reviewed our research and approved
our research." Dr. DeNoble also stated that these officials, including the
president of Philip Morris, were specifically told that nicotine had addictive
qualities.(WI complaint, p. 24-25; IL complaint, p. 34)
197.Other tobacco companies were also actively suppressing and concealing
their research on nicotine addiction. For example, B&W undertook its potentially
sensitive research on nicotine through a contractor in Geneva, Switzerland, and
through British affiliates at an English lab called Harrogate.(WI complaint, p.
24-25; IL complaint, p. 34)
198.In 1963, Addison Yeaman advised B&W to "accept its responsibility" and
disclose its findings to the Surgeon General. He said that such disclosure would
then allow the company openly to research and develop a "safer cigarette." (WI
complaint, p. 24-25; IL complaint, p. 34)
199.B&W rejected Yeaman's advice to make full disclosure to the Surgeon
General. A series of letters and telexes exchanged by Yeaman and senior BAT
official, A.D. McCormick, between June 28 and July 4, 1963, document the
company's decision not to disclose its research findings to the Surgeon General.
Some of that research was later characterized in a report in the Journal of the
American Medical Association as "at the cutting edge of nicotine pharmacology."
Tobacco industry internal research on the effects of nicotine preceded the main
published reports from the general scientific community by several years.(WI
complaint, p. 24-25; IL complaint, p. 34)
5. The Tobacco Companies Control and
Manipulation of Nicotine Levels
200.Not content to conceal the addictive nature of nicotine, the industry has
developed sophisticated technology to control the levels of nicotine in order to
maintain its market and guarantee that its customers become and remain
addicted. Dr. Kessler recently testified before a congressional committee that
cigarette manufacturers can manipulate precisely nicotine levels in cigarettes,
manipulate precisely the rate at which the nicotine is delivered in cigarettes, and
add nicotine to any part of cigarettes.(IL complaint p. 35-41):
201.Dr. Kessler testified that "the cigarette industry has attempted to frame
the debate on smoking as the right of each American to choose. The question
we must ask is whether smokers really have that choice." Dr. Kessler stated:
Accumulating evidence suggests that cigarette manufacturers may intend
this result -- that they may be controlling smokers' choice by controlling
the levels of nicotine in their products in a manner that creates and
sustains an addiction in the vast majority of smokers.
We have information strongly suggesting that the amount of nicotine in
a cigarette is there by design.
The public thinks of cigarettes as simply blended tobacco rolled in paper.
But they are much more than that. Some of today's cigarettes may, in
fact, qualify as high technology nicotine delivery systems that deliver
nicotine in precisely calculated quantities -- quantities that are more than
sufficient to create and to sustain addiction in the vast majority of
individuals who smoke regularly.
The history of the tobacco industry is a story of how a product that may
at one time have been a simple agricultural commodity appears to have
become a nicotine delivery system.
[T]he cigarette industry has developed enormously sophisticated methods
for manipulating nicotine levels in cigarettes.
In many cigarettes today, the amount of nicotine present is a result of
choice, not chance.
[Since] the technology apparently exists to reduce nicotine in cigarettes
to insignificant levels, why, one is led to ask, does the industry keep
nicotine in cigarettes at all?(IL complaint p. 35-41):
202.The Tobacco Industry has used techniques such as adding chemicals to
increase nicotine potency. In general, by increasing the alkalinity, or smoke pH,
of tobacco blends, the industry can deliver an enhanced "nicotine kick."(IL
complaint p. 35-41):
203.Particularly instructive on the issue of nicotine manipulation was the
following FDA finding published in the FDA's August, 1995 report Nicotine In
Cigarettes and Smokeless Tobacco Products:
The information in the preceding sections demonstrates that cigarette
manufacturers manipulate and control the delivery of nicotine in
marketed products. Cigarettes are designed to supply nicotine at
consistent levels despite the wide variations in the nicotine levels of the
raw materials, the immensely complicated combustion chemistry, and the
complex chemical flow properties of a modern cigarette.
Manufacturers use many techniques to control nicotine deliveries. The
application of these modifications in cigarette design and their interactive
nature pose complex problems in maintaining brand uniformity and
consistency regarding nicotine delivery. Yet, the nicotine content and
delivery of each brand of cigarettes is remarkably consistent from
batch-to-batch and year-to-year. This level of control is analogous to that
of the pharmaceutical industry in the production of prescription drugs.
In fact, to determine how well nicotine content is controlled in cigarettes,
FDA laboratories compared the content uniformity of drugs in tablet or
capsule form to the content uniformity of nicotine in cigarettes. The
results showed that nicotine content varies from cigarette to cigarette no
more than the content of active ingredients in marketed pharmaceuticals.
FDA's investigation has also disclosed that the tobacco industry uses a
number of methods to boost nicotine delivery in low-yield cigarettes.
The cigarette industry has successfully used these methods to maintain
adequate nicotine delivery from low-yield products. Without the
independent manipulation of nicotine, many of the techniques used to
reduce tar would also substantially reduce nicotine. Instead, regardless of
differences in labeled/advertised FTC nicotine yields and manufacturers
claims of low-nicotine delivery for certain brands, all cigarettes contain
approximately the same amount of nicotine in the rod, and deliver about
1 mg of nicotine, enough to produce pharmacological effects. Moreover,
studies by FDA and others have demonstrated that the lowest-yield
cigarettes have the highest concentrations of nicotine, demonstrating that
nicotine delivery has been independently manipulated.
The tobacco industry's control and manipulation of nicotine delivery
from cigarettes provides additional evidence of the industry's intent to
deliver pharmacologically satisfying levels of nicotine to smokers.
[Emphasis added.](IL complaint p. 35-41):
204.In particular, the FDA based its findings, in part, on the following:
a. The first manufacturing step in nicotine control is the
development and selection of raw materials. The Tobacco
Industry has, through breeding and cultivation practices,
developed high-nicotine tobacco plants that provide
higher-potency raw material, giving manufacturers greater
flexibility in blending and in providing uniform and sufficient
nicotine deliveries.
b. Even without the selective breeding and cultivation of plants for
nicotine content, careful tobacco leaf purchasing plans permit the
manufacturers to control nicotine content in their products. For
example, nicotine content varies among types of tobacco and
from one crop year to the next. Awareness of these basic
differences and monitoring of the nicotine levels in purchased
tobacco allows the companies to produce cigarettes with nicotine
deliveries consistent to a tenth of one percent, despite variations
as high as 25% in the nicotine content of the raw material
originating in the same area, from year to year.
c. The primary control of nicotine delivery (the amount received by
the smoker), however, is in the design and careful, sophisticated
manufacture of the cigarette, to ensure that the smoker obtains the
precise amount of nicotine intended by the manufacturer.
According to the FDA's investigation, despite reductions in the
amount of tar delivered by cigarettes over the past several
decades, nicotine delivery in low-yield cigarettes has not fallen
proportionately with the reductions in tar. Instead, nicotine
delivery has apparently risen over the last decade, a result that
confirms that nicotine delivery is being independently and
carefully manipulated by tobacco manufacturers. The FDA
specifically found that "this newly gathered information, together
with the other evidence of the industry's breeding, purchasing,
blending, and manufacturing practices, reveals that the tobacco
manufacturers control the amount of nicotine that is delivered to
the consumer from cigarettes." Such manipulation is
accomplished, in part, as set forth below.
1. Tobacco Leaf Growing
d. The industry's control and manipulation of nicotine in the
production of cigarettes begins long before the cured tobacco leaf
reaches the manufacturing plant. The characteristics of leaf
tobacco, including nicotine content, are established by the genetic
makeup of the plant, developed during growing, and fixed by
post-harvest handling. Like other raw agricultural commodities,
the physical and chemical properties of tobacco, including
nicotine, can vary widely, depending on genetic differences,
growing season conditions, and soil type. The tobacco industry
uses these differences to control and manipulate nicotine through
careful genetic breeding and agronomic practices.
e. Modern types of cultivated tobacco (Nicotiana tabacum L) have
been selected for a relatively high level of nicotine. Five major
types of tobacco make up nearly all tobacco products marketed in
the United States: Burley, flue-cured, Maryland, the Dark
tobaccos, and Oriental. These tobaccos vary both in nicotine
levels and in pH. The pH of a tobacco can have a significant
influence on the amount of, and rate at which, nicotine is
absorbed into the bloodstream of the tobacco user and delivered
to the brain.
f. American tobaccos of all types have undergone cumulative
increases in total nicotine levels since the 1950's. Nicotine levels
in the most widely grown American tobaccos increased almost
10% for Burley and more than 50% for flue-cured between 1955
and 1980.
g. According to the FDA, two Tobacco Industry activities over the
last several decades appear to be responsible for this increase: (1)
the industry's active and controlling participation in the Minimum
Standards Program, which ensures that nicotine levels of
U.S.-grown and marketed tobacco are maintained within specified
ranges; and (2) the industry maintains control over which
varieties are suitable for growing in the United States and thereby
eligible for price support.
h. One key objective of the Tobacco Industry's involvement in the
Minimum Standards Program appears to be to ensure that
nicotine levels in marketed tobacco do not fall below specified
levels. The program was initiated in response to the emergence,
in the 1950's, of several so-called "discount" varieties of tobacco
(e.g., "Coker 139," "Coker 187-Golden Wilt," "Coker 282,"
"Coker 140," "Coker 316," and "Reams 64") that failed to meet
current industry specifications established, among other things, to
control the amount of nicotine delivery when used in
manufacturing filtered cigarettes. To insure the elimination of
"discount" or low-nicotine varieties from the market, the industry
obtained the necessary cooperation from USDA to eliminate these
varieties from the price-support program. In fact, to be eligible
under this program, growers must certify, even to this day, that
"discount" varieties are not being grown.
i. While the Minimum Standards Program ensured that nicotine
levels in marketed tobaccos did not fall, breeding and cultivation
initiatives undertaken by the industry caused nicotine levels to
increase. In the 1960's and 70's, the industry turned to tobacco
breeders to develop tobacco varieties that produced less tar.
Breeders found that without intervention in the breeding of these
varieties, nicotine levels were reduced along with tars. Thus, the
industry has long been able to grow low-tar and low-nicotine
varieties of tobacco for use in manufacturing cigarettes.
j. By 1978, however, the industry had abandoned its interest in the
development of low-tar/low-nicotine varieties of tobacco for
manufacturing low-yield cigarettes, and instead turned to the
development of higher nicotine varieties.
k. In addition to breeding high-nicotine tobacco varieties, the
Tobacco Industry engages in a number of agronomic practices
that increase nicotine levels in tobacco. Heavy application of
nitrogen fertilizers, early topping, and tight "sucker" (i.e., bud
growth at the junction of stalk and leaves) control have all acted
in concert to push nicotine levels upward. In addition, tobacco
varieties have been selected for tolerance to brown spot, a leaf
disease that makes early harvest necessary. Leaves of
disease-resistant varieties tend to remain in the field longer,
resulting in maximum nicotine accumulation. Since the
introduction in 1965 of the acreage-poundage control system,
farmers have reduced the number of harvestable leaves per plant
and have tended to increase plant spacing. Both of these practices
tend to increase nicotine content in the leaf. Finally, tobacco
growers are transplanting tobacco crops earlier, which, coupled
with the widespread use of pesticides in the soil, often results in
slow early season growth, and also tends to increase nicotine
content in the leaves.
l. The foregoing facts have led the FDA to conclude that:
These nicotine-raising agronomic practices have been adopted by
U.S. growers in recent years, even though over 50% of the U.S.
cigarette market is now characterized as low delivery. Thus, the
tobacco industry has developed a number of sophisticated
methods for manipulating nicotine levels through breeding and
cultivation of tobacco plants and has used these methods to
maintain and increase concentrations of nicotine in tobacco
leaves. These methods enable the industry to use high-nicotine
leaf in low-tar cigarettes, so that, paradoxically, certain low-tar
cigarettes now contain more of the higher nicotine tobacco in
their blend than cigarettes with higher tar deliveries. The use of
these methods demonstrates that the industry manipulates
nicotine independently of other tobacco components to ensure
that cigarettes contain sufficient nicotine to satisfy smokers.
2. Leaf Purchasing
m. Another method of manipulation occurs as follows: The key
factor related to nicotine in leaf purchasing is stalk position. The
concentration of nicotine is lowest at the bottom of the plant and
highest in the top leaves of flue-cured tobacco. Thus, the position
of the leaf on the stalk determines how much nicotine the leaf will
contain. In fact, "stalk position" is an industry euphemism for
nicotine content. The stalk position of a leaf can be determined
by its appearance, shape, color, and thickness, even after harvest.
Therefore, an experienced buyer, whose instructions are dictated
by the manufacturer's chemists, need only be concerned with
these physical characteristics in identifying leaves of varying
nicotine content.
n. Representatives of the Tobacco Industry described to FDA
investigators the significant role that nicotine plays in the
purchase of tobacco leaf. Brown and Williamson informed the
FDA that stalk position is the "first thing" they look for during
leaf purchasing.
3. Leaf Blending
o. After purchase, tobacco leaves are blended to attain target levels
of nicotine and tar in the smoke. FDA's investigation noted
particular attention on the part of manufacturers to the nicotine
content of the leaf in the blending operation. As noted above,
blending practices by manufacturers are designed to: (1) control
the naturally occurring variations in nicotine and other
components caused by genetics, growing season conditions, and
soil type within a given type and grade; and (2) particularly for
low-tar cigarettes, to increase nicotine concentrations and thereby
maintain an acceptable nicotine level in the cigarettes.
p. The pH of cigarette smoke directly affects the delivery of nicotine
because it alters the amount of nicotine that is absorbed in the
mouth or lungs. PH is controlled by the manufacturer in the
selection of the type of tobacco used and blended. For example,
smoke-condensate pH is higher from certain tobacco varieties as
well as from leaves at upper stalk positions.
q. According to the FDA, blending techniques have been used to
finely control nicotine concentrations in marketed cigarettes.
r. The foregoing led the FDA to conclude that:
Significant evidence also demonstrates that tobacco
manufacturers have used blending techniques to increase nicotine
concentrations in low-tar cigarettes and thereby maintain nicotine
delivery while reducing tar delivery. FDA has observed the
industry's use of proportionately greater amounts of higher
nicotine-containing Burley tobacco in the tobacco blends of the
lowest-tar varieties of cigarettes. In fact, Thomas Sandefus, the
chief executive officer of Brown and Williamson, admitted to
Congress that nicotine levels can be adjusted "up or down"
depending on the blend of tobaccos used in a particular cigarette.
Industry scientists have also acknowledged that tobacco
manufacturers blend high-nicotine tobaccos to compensate for the
reductions in nicotine caused by innovations in cigarette design
and manufacturing to reduce tar delivered. These examples
demonstrate that tobacco manufacturers deliberately increase the
proportion of high-nicotine delivery that would otherwise result
in these products. [Emphasis added.](IL complaint p. 35-41):
6. Additional Evidence of Nicotine Manipulation
205.Reconstituted tobacco is made from stalks and stems and other waste
that cigarette companies used to discard and now use to make cigarettes more
cheaply. On information and belief, ordinarily, reconstituted tobacco contains
25% or less of the nicotine in regular tobacco. A former RJR manager who
demanded anonymity told the ABC news program "Day One," that on the
average, currently marketed brands contain about 22% reconstituted tobacco and
that cut rate or generic brands typically contain about double that amount.(IL
complaint p. 35-41):
206.A laboratory analysis commissioned by "Day One" and conducted by the
American Health Foundation confirmed the industry's heavy use of reconstituted
tobacco. One RJR brand had 25% and another had about 33% reconstituted
tobacco. Yet, tested samples of the reconstituted tobacco implanted in RJR
brands, Winston, Salem, Magna and Now had up to 70%, rather than the expected
25%, of the nicotine that would be found in regular tobacco, indicating that RJR
had fortified the reconstituted tobacco with additional nicotine.(IL complaint p.
35-41):
207.On information and belief, reconstituted tobacco has inferior taste and
less nicotine, so the cigarette manufacturers or their agents apply a powerful
tobacco extract either alone or as part of a solution of flavorings to the
reconstituted tobacco. RJR and the other cigarette manufacturers have the
technology to add flavorings with or without nicotine, so the addition of nicotine
to reconstituted tobacco is purely at the manufacturer's discretion.(IL complaint
p. 35-41):
208.The Kimberly-Clark tobacco reconstitution process is believed to be used
throughout the tobacco industry in a number of countries. A Kimberly-Clark
advertisement published in tobacco industry trade publications states:
Nicotine levels are becoming a growing concern to the designers of
modern cigarettes, particularly those with lower "tar" deliveries. The
Kimberly-Clark tobacco reconstitution process used by LTR
INDUSTRIES permits adjustments of nicotine to your exact
requirements. These adjustments will not affect the other important
properties of customized reconstituted tobacco produced at LTR
INDUSTRIES: low tar delivery, high filling power, high yield and the
flexibility to convey organoleptic modifications. We can help you
control your tobacco.(IL complaint p. 35-41):
209.Furthermore, the tobacco industry's own trade literature explains that the
Kimberly-Clark process enables manufacturers to triple or even quadruple the
nicotine content of reconstituted tobacco, thereby increasing the nicotine content
of the final manufactured product.(IL complaint p. 35-41):
210.Another enterprise quite explicitly specializes in the manipulation of
nicotine and its use as an additive. This company does business under the name
"The Tobacco Companies of the Contraf Group." An advertisement run by the
Contraf Group in the international trade press states, "Don't Do Everything
Yourself! Let us do it More Efficiently!" Calling itself "The Niche Market
Specialists," Contraf lists among its areas of specialization "Pure Nicotine and
other special additives."(IL complaint p. 35-41):
211.The cigarette industry has also used a process called "denaturing" to
add nicotine to cigarettes. Nearly-pure nicotine is combined with alcohol and
then applied to tobacco during the manufacturing process. Trucking records
show that Philip Morris, for example, received thousands of gallons of this
nicotine/alcohol mixture during the 1980's.(IL complaint p. 35-41):
212.Against this mounting body of evidence of the cigarette industry's
manipulation and control of nicotine levels in cigarettes, the cigarette
manufacturers continue to deny to the public, and recently denied to Congress
under oath, that they manipulate and control nicotine levels:
a. William I. Campbell, President and CEO of Philip Morris, told
Congress on April 14, 1994 that "Philip Morris does not
manipulate nor independently control the level of nicotine in our
products . . . . Cigarettes contain nicotine because it occurs
naturally in tobacco."
b. James W. Johnston, President and CEO of RJR Nabisco, told
Congress that "We do not add or otherwise manipulate nicotine
to addict smokers."
c. Andrew J. Schindler, President and Chief Operating Officer
U.S.A., Reynolds, told Congress that "We do not restore any
nicotine anywhere in our process . . . . We lose nicotine, for
example, in the reconstituted sheet process . . . . [N]owhere in that
process is any nicotine being incrementally added into the
process." Contradicting Johnston's and Schindler's statements,
Dr. Robert Suber, a toxicologist with RJR, admitted, however,
that RJR controls the nicotine in its products. He told CNN that
"In order to deliver to the consumer a product that he wants, a
consistent level of nicotine, we have to blend the tobaccos
accordingly. So we do control it."
d. Andrew H. Tisch, Chairman and CEO of Lorillard, told Congress
that "Lorillard does not take any steps to assure a minimum level
of nicotine in our products. Lorillard does not add nicotine to
cigarette tobacco for the purpose of manipulating or spiking the
amount of nicotine received by the smoker."
e. Edward A. Horrigan, Jr., Chairman and CEO of Liggett Group,
Inc., told Congress that "In all my years in this business
worldwide, I have never known of a product-designed objective
or goal that included even the notion of spiking the amount of
nicotine in a cigarette to achieve a level that would hook or addict
smokers." Horrigan, however, former Chairman and CEO of RJR
through the late 1980s, participated in the development and
marketing of Premier and other RJR cigarette brands whose
manufacturing process included the manipulation of nicotine
content and delivery.
f. Thomas E. Sandefus, Jr., CEO of B&W, in the face of
overwhelming evidence to the contrary, denied secretly growing
Y-1 in sworn testimony before Congress on June 23, 1994, and
stated that his company was being "set up." He admitted that the
company controlled nicotine, but in a shop-worn and now
familiar refrain, stated that the company did so only for "taste."
g. T.F. Riehl, Vice President for R&D at B&W, denying that the
company mixed the tobacco for the Barclay cigarette to have a
higher concentration of nicotine, told Congress, "No, sir. We
blend for taste, not nicotine." However, internal documents from
B&W indicate that Riehl, himself, has conducted research
focusing on the adjustment of nicotine and tar levels without
regard to taste. In fact, at the 1984 Smoking Behavior-Marketing
Conference, Riehl gave a presentation on Project Aries, B&W's
safer cigarette project, which emphasized tar reduction and
nicotine enrichment in later puffs, but never addressed the issue
of taste.(IL complaint p. 35-41):
213.The cigarette industry's "taste" argument is belied by the testimony of
health policy expert, Clifford E. Douglas, testifying before the FDA's Drug Abuse
Advisory Committee, who asked "why so many smokers who have endured
tracheostomies due to throat cancer find it necessary to continue to smoke
through the holes in their throats, where they cannot taste a thing."
214.The newly discovered evidence of nicotine manipulation by the cigarette
industry and the recent disclosures about nicotine addiction and manipulation
made before Congress have not deterred the industry from its campaign of
concealment and disinformation. As recently as April, 1994, the cigarette
industry placed advertisements across the country denying that it "spikes"
cigarettes with nicotine, denying that it believes cigarette smoking is addictive,
and misleading the public about whether the cigarette companies deliberately
control nicotine levels in their products.
215.An advertisement placed by Philip Morris in newspapers across the
country in April, 1994, denied that Philip Morris manipulates nicotine levels and
stated that "nicotine level in the finished cigarette is lower than the nicotine level
of the original, natural tobacco leaf."
216.RJR placed a similar advertisement in newspapers across the United
States, including newspapers sold in Illinois, in 1994, mischaracterizing the
"recent controversy" as focusing on RJR's various techniques that help us
reduce the 'tar' (and consequently the nicotine) yields of our products."
217.These advertisements deliberately create the false impression that the
"recent controversy" they refer to is about whether reconstituted and reduced-tar
tobacco have less nicotine than the original tobacco leaf. The tobacco
companies can legitimately claim that their finished cigarettes have less nicotine.
The real controversy, however, which these advertisements so carefully avoid,
stems from the discrepancy between actual nicotine levels of the industry's
tar-reduced and reconstituted tobacco and the claimed "essentially perfect"
correlation between nicotine and tar levels. In fact, the nicotine levels have
proven to be consistently higher than what the correlation would predict. The
inaccuracy lies not in the correlation, but in the story the industry has told the
public about how it manufactures cigarettes. That story has carefully and
deliberately omitted the industry's addition of nicotine in the form of an extract
to these tobaccos to keep them at addictive levels.
a. Manipulation of Nicotine Content: Y-1
218.B&W's development of a new tobacco plant dubbed "Y-1" is an
egregious example of the cigarette industry's concealment of its control and
manipulation of the nicotine levels in its products.(WI complaint, p. 26-29)
219.In a decade-long project, B&W secretly developed a
genetically-engineered tobacco plant, which the company called "Y-1," with a
nicotine content more than twice the average found naturally in flue-cured
tobacco. B&W took out a Brazilian patent for the new plant, which was printed
in Portuguese. B&W and a Brazilian sister company, Souza Cruz Overseas, grew
Y-1 in Brazil and shipped it to the United States where it was used in five of
B&W's cigarette brands, including three labeled "light."(WI complaint, p. 26-29)
220.When four investigators from the FDA visited the B&W plant in Macon,
Georgia, on May 3, 1994, B&W officials denied that the company was involved in
"any breeding of tobacco for high or low nicotine levels." As part of its attempt
to cover-up its project, B&W instructed the DNA Plant Technology Corporation
of Oakland, California, which had developed Y-1, to tell FDA investigators that
Y-1 had "never [been] commercialized."(WI complaint, p. 26-29)
221.Only after the FDA discovered two United States Customs Service
invoices indicating that "more than a half-million pounds" of Y-1 tobacco had
been shipped to B&W on September 21, 1992, did the company admit that it had
developed the high-nicotine tobacco and that close to 4 million pounds of Y-1
were stored in company warehouses in the United States.(WI complaint, p. 26-29)
222.Philip Morris also undertook development of methods to boost or
manipulate the nicotine content of tobaccos. According to Ian Uydess, a Philip
Morris scientist:
In the 1980's, Philip Morris conducted field experiments on the growth
of tobacco with elevated nicotine levels for possible use in their products.
Philip Morris examined a technique called 'ratooning' which involved
cutting down of the tobacco plant early in the harvest cycle before the
plant had fully matured. As the cut plant resumed its growth, the roots
deposited elevated levels of nicotine in the leaves of the plant . . . . This
technique produced tobacco leaves that had higher nicotine levels than
the leaves of non-ratooned plants.
223.Y-1 and the experiments conducted by Philip Morris are examples of an
overall trend in the tobacco industry to increase the nicotine content of tobaccos.
American tobaccos of all types have undergone cumulative increases in total
nicotine levels since the 1950's. Nicotine levels in the most widely grown
American tobaccos increased 10 to 50% between 1955 and 1980. This increase
is the result of the industry's active and controlling participation in efforts to
breed and cultivate tobacco for high nicotine levels.
b. Manipulation of Nicotine Delivery
224.The nicotine content of unprocessed tobacco is not the only variable
manipulated by the tobacco companies to deliver a pharmacologically active
dose of nicotine to the tobacco product user. Modern tobacco products sold in
Illinois are painstakingly designed and manufactured to control nicotine delivery
to the consumer.
225.Dr. Kessler testified in detail before the Waxman Subcommittee about the
various forms of nicotine manipulation practiced by the tobacco industry:
manipulating the rate at which nicotine is delivered in the cigarette; transferring
nicotine from one material to another; increasing the amount of nicotine in
cigarettes; and adding nicotine to any part of a cigarette.
226.Dr. Kessler's testimony shows that nicotine is not an inevitable or
unavoidable component of tobacco products, and that the tobacco companies
have the capability to remove all or virtually all of the nicotine from tobacco
products using technology already in existence. They also have the capability to
add nicotine to tobacco products.
227.One tobacco company, ATC, has admitted test-marketing a
nicotine-enriched cigarette in 1969.
228.Tobacco industry patents show that the tobacco companies have
developed the capability to manipulate nicotine levels in cigarettes to an exacting
degree. For example:
a. A Philip Morris patent application discusses an invention that
"permits the release . . . in controlled amounts and when desired,
of nicotine into tobacco smoke."
b. Another Philip Morris patent application explains that the
proposed invention "is particularly useful for the maintenance of
the proper amount of nicotine in tobacco smoke," and notes that
"previous efforts have been made to add nicotine to Tobacco
Products when the nicotine level in the tobacco was undesirably
low."
c. A 1991 RJR patent application states that "processed tobaccos
can be manufactured under conditions suitable to provide
products having various nicotine levels."
229.One method that the tobacco companies use to manipulate nicotine
levels in their products involves the addition of several ammonia compounds
during the manufacturing process which increase the delivery of nicotine and
almost double the nicotine transfer efficiency of cigarettes.
230.B&W has recently publicly denied that the use of ammonia in the
processing of tobacco increases the amount of nicotine delivered to the smoker.
Nevertheless, the company's own internal documents reveal that it and virtually
all other tobacco companies use ammonia compounds to increase nicotine
delivery. A 1991 B&W confidential blending manual states:
Ammonia, when added to a tobacco blend, reacts with the indigenous
nicotine salts and liberates free nicotine . . . extractable nicotine to bound
nicotine in the smoke may be altered in favor of extractable nicotine. As
we know, extractable nicotine contributes to impact in cigarette smoke
and this is how ammonia can act as an impact booster. According to the
Brown & Williamson manual, all American tobacco companies except
Liggett use ammonia technology in their cigarettes.
231.At Philip Morris, ammonia is regularly added to the slurry of tobacco
by-products from which reconstituted tobacco leaf ("RCL"), and in turn,
cigarettes, are made.
232.According to Dr. Jeffrey Wigand, a former B&W scientist, "[t]he primary
form of managing or manipulating nicotine delivery . . . is by use of ammonia
compounds."
233.The tobacco companies' manipulation and control of nicotine levels is
further evidenced by the emergence of companies that specialize in manipulating
nicotine and that are now offering their services to tobacco manufacturers. A
process called tobacco reconstitution, patented and marketed by a
Kimberly-Clark Corporation subsidiary, LTR Industries, is widely used throughout
the industry.
234.Reconstituted tobacco is made from stalks and stems and other waste
that tobacco companies formerly discarded and is now used to make cigarettes
more cheaply. In the reconstitution process, pieces of tobacco material undergo
treatment that results in the extraction of some soluble components, including
nicotine. The pieces are then physically formed into a sheet of tobacco material,
to which the extracted nicotine is re-added. Although denied by tobacco
executives, it has been publicly reported that this process adjusts nicotine levels
in the products, and that one manufacturer, RJR, "readily admits to setting levels
of nicotine . . . for the tobacco sheet."
235.An advertisement in tobacco industry trade publications for the
Kimberly-Clark tobacco reconstitution process states, "Nicotine levels are
becoming a growing concern to the designers of modern cigarettes, particularly
those with lower 'tar' deliveries. The Kimberly-Clark tobacco reconstitution
process used by LTR Industries permits adjustments of nicotine to your exact
requirements . . . . We can help you control your tobacco."
236.The tobacco industry's own trade literature explains that the
Kimberly-Clark process enables manufacturers to triple or even quadruple the
nicotine content of reconstituted tobacco, thereby increasing the nicotine content
of the final manufactured product.
237.Two former Philip Morris scientists, Ian Uydess and Jerome Rivers, have
described in affidavits how Philip Morris manipulates the nicotine content of its
tobacco products in order to deliver targeted levels of nicotine to the smoker.
According to Dr. Uydess:
Nicotine levels were routinely targeted and adjusted by Philip Morris in
its various products at least in part through blend changes and blend
design . . . Tobacco companies like Philip Morris learned a long time ago
that it was hard to get people to stay with a good tasting product if the
nicotine level was too low . . . The information gained by Philip Morris
from the chemical analysis of tobacco of different varieties, ripeness, etc.,
was used in the blend design of new products to ensure that the desired
amount of "high" or "low" nicotine tobaccos were present in order to
deliver the amount of nicotine (or other tobacco constituents) that had
been targeted for that product.
Dr. Uydess also testified that if sales of a new product in test markets
were disappointing, "it was suggested that the product development
group might have to adjust the blend so as to raise the nicotine level in
order to increase its 'staying power' (acceptability and sale) in the market
place."
238.According to Dr. Jeffrey Wigand, a former researcher for B&W, B&W
manipulated nicotine levels in its products in a number of ways. In addition to
using additives such as ammonia to change the pH of the tobacco smoke in
order to convert total nicotine to free nicotine, B&W, like Philip Morris, utilized
blending techniques "as a way of assuring the appropriate nicotine level." The
company also manipulated nicotine levels "through cigarette design, through
filtration, through paper design." c. Manipulation of Nicotine Delivery in
Smokeless Tobacco
239.U.S. Tobacco has intentionally manipulated the amount of nicotine in its
products since at least the 1970's. This manipulation is achieved through several
means. First, the amount of total nicotine contained in the product is
manipulated through the selection and blending of particular types of tobacco
leafs. Second, U.S. Tobacco manipulates the amount of "free" nicotine in its
products. The amount of "free" nicotine determines how much nicotine is
actually absorbed into the users' system. Levels of "free" nicotine are controlled
by adjusting the pH of the product, either through a fermentation process, by
adding alkaline buffering agents such as sodium bicarbonate and ammonium
bicarbonate, or by altering moisture content.(WI complaint, p. 28)
240.Several former U.S. Tobacco chemists have admitted that U.S. Tobacco
manipulates the amount of free nicotine in its product. For example, one
employee stated in 1994 that "US Tobacco routinely adds chemicals to its snuff
to deliver the free nicotine faster and to make the product stronger." Another
admitted, "The fermentation process involves adding chemicals and, at the end,
you add some more chemicals which increase the pH too . . . . Without
increasing the pH, you couldn't get nicotine release."(WI complaint, p. 28)
241.U.S. Tobacco has used its manipulation of nicotine content in a carefully
designed marketing strategy to attract new users to its smokeless tobacco and
then to addict them to the nicotine in its products. This strategy has been
described by U.S. Tobacco as a "graduation" strategy because it employs lower
nicotine product choices from which the more "experienced" smokeless tobacco
user graduates to heavier nicotine brands.(WI complaint, p. 28)
242.If new users, such as children or adolescents, begin smokeless tobacco
use with one of U.S. Tobacco's high nicotine brands such as Skoal Fine Cut or
Copenhagen, a toxic response to the nicotine such as dizziness or nausea may
occur and the novice is more likely to quit before tolerance to the toxic effects
of nicotine begins to develop. To respond to this scenario and to attract and
keep new customers, U.S. Tobacco has developed low nicotine starter brands
such as Happy Days, Skoal Bandits and Skoal Long Cut.(WI complaint, p. 28)
243.In 1985, U.S. Tobacco Vice President, Jack A. Frick, explained in a
company newsletter, "As far as our strategy for entering a new market is
concerned - for each market there is a set of criteria which have been
established, and must be met. Skoal Bandits is the introductory product, and
then we look towards establishing a normal graduation process."(WI complaint,
p. 28)
244.Marketing consultants for U.S. Tobacco also have described the
graduation theory:
New users of smokeless tobacco -- attracted to the category for a variety
of reasons are most likely to begin with products that are milder tasting,
more flavored, and/or easiest to contain in the mouth. After a period of
time there is a natural progression of product switching to brands that are
full-bodied, have flavored more concentrated tobacco taste than the entry
brand.(WI complaint, p. 28)
245.U.S. Tobacco has also referred to this strategy within the company. Ken
Carlson, a division manger in U.S. Tobacco's sales department from 1979 to
1986, has disclosed, "they talked about graduation all the time-- in sales
meetings, memos and manuals for the college program. It was a mantra."(WI
complaint, p. 28)
246.A 1986 brochure for U.S. Tobacco's Skoal Bandits describes to new
users how to begin the graduation process by developing a tolerance for the
toxic effects of nicotine:
How long should I keep the pouch in my mouth? If you haven't tried
Skoal Bandits before, we recommend that you keep your first one in for
about a minute--then remove. The next time you try another one, leave
it in for a bit longer. Like your first beer, Skoal Bandits can be a taste
that takes time to acquire and get the most out of. After four or five
Skoal Bandits you'll find you've developed quite a taste for them and
you'll want to keep a pouch in as long as the flavour lasts -- this varies
from person to person.
G. MARKETING
1. Targeting Children
247.In addition to ensuring a captive market through the addiction of its
customers, the tobacco companies maintain their sales and replace hundreds of
thousands of tobacco users who die each year by target marketing and
promoting their products to children and adolescents.(Wisconsin Complaint
paragraph 202)
248.Despite the best efforts of parents, educators, the medical profession
and public health officials, tobacco use among children and adolescents is on
the rise. A 1995 National Institute of Drug Abuse study found that between 1991
and 1994, the proportional increase in smoking rates was greatest among eighth
graders, rising by 30%. The tobacco companies' pervasive advertising
associates tobacco use with healthy, glamorous and athletic lifestyles, with
success and with sexual attractiveness. Within a short period of time, the
underage tobacco user becomes addicted to tobacco. Later, as the maturing
tobacco user begins to wish he or she could quit, advertising reinforces the
practice and seeks to minimize health concerns and creates doubt and
confusion. The images and message of these advertisements have the purpose
and effect of providing tobacco users an excuse to avoid the pain and discomfort
of attempting to break their addiction to nicotine. This conduct on the part of the
tobacco companies is particularly egregious in that it is directed at children and
adolescents who lack the maturity, judgment and experience of adults.
Manipulating levels of nicotine, the addictive ingredient in tobacco products, and
then targeting children and adolescents is unconscionable.(Wisconsin Complaint
paragraph 203)
249.The overwhelming majority of tobacco product use and addiction begins
when users are children or adolescents. More than 80% of smokers began
smoking when they were under the age of eighteen, and the prevalence of
tobacco use among adolescents is continually increasing. In 1993 in Illinois,
29.1% of high school students reported that they had smoked in the past month,
and 16.2% of all high school boys had used smokeless tobacco products.
Studies demonstrate that the younger one begins to smoke, the more likely it is
that person will become a heavy smoker. Accordingly, the younger a person
begins smoking, the more likely it is that he or she will die of a tobacco-related
disease. Studies have shown that lung cancer mortality is highest among adults
who began smoking before the age of 15. One-quarter to one-third of all children
and adolescents who start smoking can be expected to die of smoking related
diseases.(Wisconsin Complaint paragraph 204)
250.The tobacco companies are well aware of the importance of reaching the
child and adolescent market. For example, in 1984, an RJR marketing report
detailed federal research showing that smokers began as early as age 12 and
rarely after age 25, with a median age of 17. The tobacco companies have also
studied the development of brand loyalty among child and adolescent
smokers.(Wisconsin Complaint paragraph 205)
251.Although children and adolescents frequently believe that they will not
become addicted to nicotine or become long-term users of tobacco products,
they often find themselves unable to quit. Among smokers ranging from 12 to
17 years of age, a 1992 Gallup survey found that 70% regret their decision to
smoke and 66% indicate that they want to quit. 51% of adolescent smokers had
made a serious effort to quit, but had failed. Those who are able to quit
experience withdrawal symptoms similar to those experienced by adults. The
nicotine contained in smokeless tobacco has been shown to have similar effects
to that in cigarettes.(Wisconsin Complaint paragraph 206)
252.Tobacco companies understand that advertising campaigns directed at
children and adolescents are important tools in increasing their sales. Since
1964, about 44 million Americans have quit smoking and approximately 9 million
more have died of tobacco-related diseases. For the tobacco companies to
preserve their market status, they must attract two million new users each year
to replace these lost consumers. Such new users will overwhelmingly be
adolescents who, because of the addictive quality of tobacco products, will be
likely to continue their tobacco use through adulthood.(Wisconsin Complaint
paragraph 207)
253.While many segments of the adult population have decreased their
tobacco use, the prevalence of tobacco use by children and adolescents is
increasing. Between 1991 and 1995, the rate of cigarette consumption among
students in grades 9 through 12 increased from 27.5% to 34.8%. Illegal sales to
minors have been estimated to generate well over a billion dollars per year in
revenue for the tobacco companies.(Wisconsin Complaint paragraph 208)
254.Tobacco products are among the most heavily advertised in the United
States. In 1990, cigarette advertising expenditures were second only to
automobile advertising. Between 1970 and 1993, cigarette expenditures for
marketing increased from $361 million to over $6 billion, a 1,562% increase. In
1993, marketing expenditures for the significantly smaller smokeless tobacco
products market exceeded $119 million. As a result, tobacco product brand
names, logos and advertising messages appear on billboards, trains, in
magazines with high-youth readership and newspapers, on clothing and other
goods. Such pervasive images and messages convey to children and
adolescents that tobacco use is desirable, socially acceptable, safe, healthy and
prevalent in society.(Wisconsin Complaint paragraph 209) a. The Use of
Marketing to Attract Children and Adolescents
255.The increase in underage tobacco product use is perpetuated by
advertising campaigns that have particular appeal to children and adolescents.
Such campaigns promote the product for its symbolic attributes to convey the
impression that consumption of the product will enhance the user's self-image
or image among his or her peers. By way of example, the "Marlboro Man," a
Philip Morris campaign, presents an image of adventure and freedom while RJR's
"Joe Camel" gives humorous dating tips and engages in activities such as
motorcycle riding and waterskiing. Newport advertisements show young men
and women having fun, usually in sexually suggestive positions, under the
slogan "Alive with Pleasure" or "Newport Pleasure." Such advertising
techniques appeal to children and adolescents by providing them with images
to wear as badges of identity. Not surprisingly, Marlboro, Camel and Newport are
the leading cigarette brands used by children and adolescents, among them
accounting for 85% of the underage market in 1993. These three brands
accounted for only 35% of the total market share in the same year.(Wisconsin
Complaint paragraph 210)
256.Marlboro, which has traditionally dominated the adolescent cigarette
market, was originally a red tipped cigarette targeted toward the female market
with the slogan, "Mild as May." In the 1950s, an advertising campaign which
culminated in the creation of the Marlboro cowboy, transformed Marlboro into a
"masculine product" intended to appeal to the starter market. Because young
smokers often take up the habit as an assertion of independence and adulthood,
the Marlboro cowboy campaign emphasizes themes of independence.(Wisconsin
Complaint paragraph 211)
257.Similarly, the model who portrayed the "Winston Man" for RJR testified
before Congress, "[I]t was made clear to us that . . . we were to provide the
attractive role models for [kids] to follow . . . I was told I was a live version of the
GI Joe . . . ."(Wisconsin Complaint paragraph 212)
258.While Philip Morris's Marlboro brand has been positioned to appeal to
young male smokers, Philip Morris and the other tobacco companies have also
specifically targeted young females, with brands such as Virginia Slims, Eve and
Silva Thins.(Wisconsin Complaint paragraph 213)
259.Thus, Philip Morris has had particular success in appealing to adolescent
girls with its "You've Come a Long Way Baby" campaign, promoting Virginia
Slims cigarettes. One of the most important psychological needs of most
adolescent girls is to become independent from their parents. Another important
psychological need of adolescent girls is to be perceived as slim. By associating
smoking with women's liberation, Philip Morris intended to create in the minds
of teenage girls the vision of smoking as a symbol of autonomy and
independence. By associating their cigarettes with images of thin and glamorous
models, Philip Morris conveys the image that smoking will help girls to lose
weight and look slimmer. Indeed, the very name, Virginia Slims, is suggestive.
Ads for Virginia Slims and other "feminine" cigarettes prey upon the natural and
common insecurity and sense of inferiority experienced by adolescents, by
portraying the cigarette as a crutch and a symbol of superiority.(Wisconsin
Complaint paragraph 214)
260.One element of this advertising campaign has been advertising aimed at
young girls. Nearly every issue of magazines for young girls, like Teen and
Young Miss, includes an advertisement by RJR urging children not to smoke.
But the reasons given for refraining are not that smoking is addictive, that it can
harm or kill the developing fetuses of pregnant women or that it causes cancer
and other lethal diseases; rather, the reason given is that it is an "adult
decision."(Wisconsin Complaint paragraph 215)
261.The likely effect of these ads is that, rather than discouraging children
from smoking they plant in impressionable young girls' minds the notion that
smoking is something to do to show one's independence, to act grown-up. This
notion is, of course, reinforced by the ubiquitous cigarette ads depicting
glamorous young adult women smoking as a way of demonstrating their
independence.(Wisconsin Complaint paragraph 216)
262.As a result of these efforts to target young females, there was, between
1967 and 1975, a substantial rise in the numbers of new female smokers between
the ages of 11 and 17.(Wisconsin Complaint paragraph 217)
263.RJR's use of the "Joe Camel" campaign is a striking example of the
power that marketing can have on capturing young smokers. The "Joe Camel"
campaign was initiated in 1987 to commemorate the 75th anniversary of Camel
cigarettes. It soon became evident that the "Joe Camel" cartoon character
strikes a responsive chord among children and adolescents. Since then, the
campaign has been used to target children to induce them to start smoking as
early as possible, so they can become addicted to nicotine and form brand
loyalties which will last the rest of their lives.(Wisconsin Complaint paragraph
218)
264.When RJR began the "Joe Camel" cartoon campaign, Camel's share of
the youth market was estimated to be between 0.5% and 3%. In just a few years,
Camel's share of the youth market increased to over 13% and by some accounts,
had increased to over 32%.(Wisconsin Complaint paragraph 219)
265.Reynolds has encouraged children to circumvent laws related to tobacco
use by minors. For example, in one coupon offer for a free package of Camels,
"Joe Camel" suggests that it would be a "smooth move" to have someone else
redeem the coupon, thus suggesting the means to overcome prohibitions of
sales to minors of tobacco products. Other Reynolds campaigns have targeted
stores and advertising locations close to high schools and other areas
frequented by adolescents.(Wisconsin Complaint paragraph 220)
266.Taking a cue from the success of its Joe Camel campaign in the youth
market, RJR recently introduced still another cigarette brand obviously designed
with children in mind. As described in a November 18, 1996, New York Times
article:
The cigarettes are awfully cute. They're called Jumbos and there is an
elephant on the front and the back of the box. On the side is a little man
in the moon blowing smoke rings. And on each individual cigarette,
where the brand name usually goes, is a tiny drawing of an elephant.
The same article quotes an RJR spokesperson as saying, when asked to
comment, "[o]bviously we would never do anything that would appeal to
younger smokers."(Wisconsin Complaint paragraph 221)
267.Tobacco product advertising is becoming increasingly concentrated in
youth-oriented publications. Moreover, tobacco product ads in these
youth-oriented magazines are frequently multi-page, pop-up ads which are
significantly more costly, but also more attention-grabbing than conventional
ads. By way of example, Rolling Stone magazine ran a "rockin ticketmaster" ad
in which the opening page featured the Joe Camel character in a leather jacket
and t-shirt looking down at the reader saying "Wanna See a Show?" When the
reader turns the page, the Joe Camel character pops out of the magazine to hand
the reader two tickets with the caption, "Go ahead, its on me."(Wisconsin
Complaint paragraph 222)
268.Another strategy that tobacco companies use to appeal to children and
adolescents is distributing promotional items, such as t-shirts, baseball caps and
pocket knives through the mail and at promotional events. These items
encourage adolescents, to whom such items have great appeal, to accumulate
merchandise by buying more cigarettes. More importantly, the items, which do
not generally display warning labels, turn the children into walking
advertisements that penetrate into schools and other areas where advertising
would otherwise be restricted. A 1992 Gallup Poll found that about half of
adolescent smokers and one-quarter of non-smoking adolescents had received
at least one of these items.(Wisconsin Complaint paragraph 223)
269.Tobacco companies have also marketed to youth by inserting
advertisements for their products into movies that have appeal to children. Such
movies include, for example, Superman II, Supergirl and James Bond. A 1983
letter signed by the actor Sylvester Stallone documents one such agreement. Mr.
Stallone writes, "I guarantee that I will use Brown & Williamson tobacco products
in no less than five feature films. It is my understanding that Brown &
Williamson will pay a fee of $500,000.00." Such "stealth" advertisements take
advantage of the fact that children and adolescents are particularly susceptible
to such role models and are wholly unaware that they are the subject of the
marketing.(Wisconsin Complaint paragraph 224)
270.Sponsorship of, and placement of billboards at, sporting and
entertainment events is another effective means of stealth advertising. Such
advertising makes its way onto television, where cigarette advertising is
otherwise prohibited. By way of example, when the 1989 Marlboro Grand Prix
was televised, the Marlboro logo could be seen for 46 of the 94 total minutes of
the event's broadcast time.(Wisconsin Complaint paragraph 225)
271.Despite the overwhelming evidence, the tobacco companies continue to
deny any youth-directed advertising and promotional activities. The tobacco
companies represent that the purpose and effect of their advertising is limited
to maintaining brand loyalty and enticing existing adult smokers to switch brands
and that it has no role in encouraging children and adolescents to experiment
with tobacco products.(Wisconsin Complaint paragraph 226)
b. The Success of the Strategy
272.The tobacco companies have pursued, and continue to pursue, such
advertising campaigns knowing them to be particularly effective for inducing
children and adolescents to purchase, use and become addicted to tobacco
products. One study found that 30% of three year olds and 91% of six year olds
associated the "Joe Camel" cartoon character with cigarettes. By the age of six,
the face of "Joe Camel" and the silhouette of Mickey Mouse were equally well
recognized.(Wisconsin Complaint paragraph 227)
273.Studies also show that while adolescents' cigarette consumption tends
to be closely correlated to the level of advertising, adults tend to purchase
generic or "value category" cigarette brands, which use little or no "image"
advertising.
274.Studies have also demonstrated the success of the tobacco companies'
efforts to target young girls under the age of 18. Starting in 1987, with the
commencement of new campaigns targeting young girls, there was a sharp rise
in new users in the 12 - 17 year old group. The jump was 110% in 12 year olds;
55% among 13 years olds; 70% among 14 year olds; 75% among 15 year olds;
55% among 16 year olds; and 35% among 17 year olds. During the period 1967
to 1975, there were billions of dollars of sales of Virginia Slims, Silva, and
Eve.(Wisconsin Complaint paragraph 229)
275.The tobacco companies' own research confirms the appeal of its
marketing campaigns to children. A study funded by RJR found that among
three to six year olds, "Joe Camel" was more readily associated with cigarettes
than Ronald McDonald was with hamburgers. A 1969 research paper presented
to the Philip Morris Board of Directors concluded that, "The 16 to 20-year old
begins smoking for psychosocial reasons. The act of smoking is symbolic; it
signifies adulthood, he smokes to enhance his image in the eyes of his
peers."(Wisconsin Complaint paragraph 230)
276.Other tobacco companies' research and marketing memoranda that
recently have been made public provide compelling evidence that advertising
campaigns were designed with the purpose and effect of targeting children and
adolescents. A 1976 memorandum entitled "Planning Assumptions and Forecast
for the Period 1976-1986 for R.J. Reynolds Tobacco Company," unabashedly
states, "Evidence is now available to show that the 14 to 18 year old group is an
increasing segment of the smoking population. RJR must soon establish a
successful new brand in this market if our position in the Industry is to be
maintained over the long term."(Wisconsin Complaint paragraph 231)
277.A 1973 confidential document from RJR entitled "Research Planning
Memorandum on Some Thoughts about New Brands of Cigarettes for the Youth
Market" bluntly describes the strategy. The memo states:
[I]f our Company is to survive and prosper, over the long term, we must
get our share of the youth market . . . In my opinion this will require new
brands tailored to the youth market; I believe it unrealistic to expect that
existing brands identified with an over-thirty "establishment" market can
ever become the "in" products with the youth group. Thus we need new
brands to be particularly attractive to the young smoker, while ideally at
the same time being appealing to all smokers . . . .
The expected or derived psychological effects are largely responsible for
influencing the pre-smoker to try smoking, and provide sufficient
motivation during the 'learning' period to keep the 'learner' going,
despite the physical unpleasantness and awkwardness of the period. In
contrast, once the "learning" period is over, the physical effects become
of overriding importance and desirability to the confirmed smoker . . . .
Once this mechanism [the cigarette] has been experienced and used,
physical and psychological habit patterns are firmly established and
become self-perpetuating . . .
I PHYSICAL EFFECTS
Nicotine Effects - Nicotine should be delivered at about 1.0 to 1.3
mg./cigarette, the minimum for confirmed smokers. The rate of
absorption of nicotine should be kept low by holding pH down, probably
below 6.
II PSYCHOLOGICAL EFFECTS
A. Group Identification
. . . [T]here is strong psychological pressure, particularly as a young
person, to identify with the group, follow the crowd, and avoid being out
of phase with the group's value system . . . . Thus a new brand aimed at
the young smoker . . . should emphasize togetherness, belonging and
group acceptance, while at the same time emphasizing individuality and
'doing one's own thing'. . . .
B. Stress and Boredom Relief - The teens and early twenties are periods
of intense psychological stress, restlessness and boredom. Many socially
awkward situations are encountered. The minute or two required to stop
and light a cigarette, ask for a light, find an ash tray, and the like provide
something to do during periods of awkwardness and boredom, and afford
a little "time-out period" when confronting a stressful situation. Smoking
also gives one something to do with the hands, eyes, etc. and something
to talk about in a situation where otherwise one might simply have
nothing to do or say.
C. Self-Image Enhancement - The fragile, developing self-image of the
young person needs all of the support and enhancement it can get.
Smoking may appear to enhance that self-image in a variety of ways. If
one values, for example, an adventurous, sophisticated, adult image,
smoking may enhance ones self-image . . . .
D. Experimentation - There is a strong drive in most people, particularly
the young, to try new things and experiences. This drive no doubt leads
many pre-smokers to experiment with smoking, simply because it is there
and they want to know more about it. A new brand offering something
novel and different is likely to attract experimenters, young and old, and
if it offers an advantage it is likely to retain these users. . . .
* * *
A final psychological factor . . . involves smoking-health attitudes. The
smoking-health controversy does not appear important to the group
because, psychologically, at eighteen, one is immortal. Further, if the
desire to be daring is part of the motivation to start smoking, the alleged
risk of smoking may actually make smoking attractive. Finally, if the
"older" establishment is preaching against smoking, the anti-
establishment sentiment discussed above would cause the young to want
to be defiant and smoke. Thus a new brand aimed at the young group
should not in any way be promoted as a "health" brand, and perhaps
should carry some implied risk. In this sense, the warning label on the
package may be a plus.(Wisconsin Complaint paragraph 232)
278.A similar document from a sister company of B&W states, "If the last ten
years have taught us anything, it is that the industry is dominated by the
companies who respond most effectively to the needs of younger smokers." The
document explained, "[t]he smoker base is declining, primarily as a function of
successful quitting. And the characteristics of new smokers are changing such
that the future starting level may be in question."(Wisconsin Complaint
paragraph 233)
279.RJR MacDonald, an RJR affiliate, conducted a "Youth Target" survey,
which was the first of a planned series to study the lifestyles and value systems
of young men and women in the 15-24 age range. The stated purpose of the
study was to "provide marketers and policy makers with an enriched
understanding of the mores and motives of this important emerging adult
segment which can be applied to better decision making in regard to products
and programs directed at youth." The study focused on the "primary elements
of lifestyle and values among the youth of today."(Wisconsin Complaint
paragraph 234)
280.The tobacco companies' willingness to follow up on such plans is
demonstrated by the Congressional testimony of the model who portrayed the
"Winston Man" for RJR's Winston brand cigarettes. He stated, "I was clearly told
that young people were the market that we were going after." He further testified,
"it was made clear to us that this image was important because kids like to role
play, and we were to provide the attractive role models for them to follow . . .
."(Wisconsin Complaint paragraph 235)
281.Tobacco companies are also aware that once children and adolescents
begin smoking, it will be difficult for them to stop. The RJR internal document
entitled "Confidential Research and Planning Memorandum on Some Thoughts
About New Brands of Cigarettes for the Youth Market" explicitly noted that once
the "learning period" for new smokers is over, "physical and psychological" habit
patterns become firmly established and self-perpetuating. Studies prepared for
an affiliate of B&W state that "[h]owever intriguing smoking was at 11, 12 or 13,
by the age of 16 or 17 many regretted their use of cigarettes for health reasons
and because they feel unable to stop smoking when they want to." Another
document prepared for the same company states, the desire to quit seems to
come earlier now than before, even prior to the end of high school. In fact, it
often seems to take hold as soon as the recent starter admits to himself that he
is hooked on smoking. However, the desire to quit, and actually carrying it out,
are two quite different things, as the would be quitter soon learns.(Wisconsin
Complaint paragraph 236)
282.The financial allure of the underage market has not escaped the attention
of the smokeless tobacco industry. U.S. Tobacco has successfully revived a
declining market for its smokeless tobacco products by targeting children and
adolescents. In 1970, moist snuff smokeless tobacco was consumed primarily
by men over 50, and young males were among the smallest market share. By
1985, use of moist snuff by young males was double that of men over
50.(Wisconsin Complaint paragraph 237)
283.U.S. Tobacco's campaign to market to children and adolescents was
made clear at a 1968 U.S. Tobacco meeting focusing on future markets.
According to the minutes, Louis Bantle, then U.S. Tobacco's Vice President for
Marketing, set forth the following marketing strategy, "We must sell the use of
tobacco in the mouth and appeal to young people . . . ."(Wisconsin Complaint
paragraph 238)
284.U.S. Tobacco's youth marketing campaign includes a "graduation
process" of starting new users on a low nicotine product, and having them
graduate to higher nicotine delivery brands as they progress. Advertising dollars
and promotions are disproportionately directed toward the low nicotine, "starter
brands." Such advertisements have been often delivered by professional
athletes and use slogans stressing that the product is easy to use in "places
where you can't light up." This message conveys the not so subtle suggestion
that the product can be used without fear of adult detection.(Wisconsin
Complaint paragraph 239)
285.Desiring that the users will soon become addicted and graduate to higher
nicotine brands, U.S. Tobacco has pursued a strategy of distributing its "starter"
products as widely as possible. By way of example, U.S. Tobacco
representatives are instructed to distribute free samples of the low nicotine
starter brands rather than the high nicotine brands. In 1978 U.S. Tobacco ran
advertisements in Sports Illustrated offering free samples of fruit-flavored
low-nicotine snuff for beginners. The samples came complete with instructions
for use.(Wisconsin Complaint paragraph 240)
286.Like advertising for cigarettes, smokeless tobacco advertising is
disproportionately concentrated on the products with the widest appeal to
children. In 1983, Skoal Bandits, U.S. Tobacco's low nicotine starter brand,
accounted for 47% of U.S. Tobacco's advertising dollars, but only 2% of the
market share by weight. U.S. Tobacco's highest nicotine-delivery brand had only
1% of the advertising expenditures, but 50% of the market share.(Wisconsin
Complaint paragraph 241)
287.Demonstrating the success of the youth marketing program, Bantle, who
had helped to initiate the campaign, stated in 1977 that, "In Texas today, a kid
wouldn't dare to go to school, even if he doesn't use the product, without a can
in his Levi's."(Wisconsin Complaint paragraph 242)
288.A U.S. Tobacco employee, Bill Falk, who was apparently terminated for
some other comments in the article, told a New York Post reporter that "A lot of
young people are getting into it [smokeless tobacco use] . . . It's become a
status thing. When a kid gets a new pair of jeans, he puts the snuff can in the
back pocket and rubs it till the outline shows. It shows he's old enough to
chew."(Wisconsin Complaint paragraph 243)
289.The ease with which children and adolescents can purchase tobacco
products from stores and vending machines ensures that the tobacco companies
will be able to reap the profits from the increased demand created by their
advertising targeted at children and adolescents. A recent survey found that
over 77% of smokers under the age of 18 reported never having been asked for
proof of age when purchasing cigarettes in a store in the 30 days preceding the
survey. 75% of eighth graders and nearly 90% of tenth graders have reported that
it would be fairly easy or very easy to obtain cigarettes and 94% of junior and
high school students said that it was either easy or only rarely difficult to
purchase smokeless tobacco products.(Wisconsin Complaint paragraph 244)
290.Although tobacco companies are aware of the easy access that children
and adolescents have to their product, they have taken no serious steps to
prevent such distribution. In fact, the tobacco companies have attempted to
convey the impression that they wish to discourage sales to minors, without
taking any serious action to prevent such sales. Thus, despite the fact that
Philip Morris had promised to suspend merchandising payments to merchants
caught selling to minors, and despite the fact that Philip Morris had been
informed of a number of merchants who were convicted of selling to minors,
Philip Morris has admitted that not one merchandising payment in the entire
country has been suspended under this program. Instead, the tobacco
companies actively encourage such distribution through their advertising and
marketing practices.(Wisconsin Complaint paragraph 245)
291.Part of the tobacco companies' marketing strategy is to attract children
and adolescents by placing advertising and promotional material in stores
located near high schools. In a 1990 memorandum marked "very important," a
division manager of RJR ordered its employees to identify stores near high
schools and colleges for the purpose of increasing marketing efforts in those
locations. This was not an isolated incident but a nationwide policy. In April of
that year, another memorandum, from a different RJR manager located in a
different region, listed as targets for an increased marketing campaign facilities
that are "located across from, adjacent to or in the general vicinity of High
Schools or College Campus [sic]."(Wisconsin Complaint paragraph 246)
292.A July, 1995 report by the California Department of Health Services found
that stores within 1,000 feet of a school had significantly more tobacco
advertising and promotions than average. Stores near schools were more likely
to have at least one tobacco advertisement placed next to candy or displayed at
three feet or below. A significantly higher average number of tobacco
advertisements also were found on the exterior of stores located in young
neighborhoods--communities in which at least one-third of the population was
17 years of age or less.(Wisconsin Complaint paragraph 247)
c. False Assurances
293.The tobacco companies have launched a number of campaigns designed
to make the public at large believe that they wish to discourage young people
from smoking. In reality, such campaigns have the purpose and effect of
assuaging parental and governmental concerns while imposing minimal
restraints on, or even enhancing, tobacco companies' ability to continue to
market to children and adolescents.(Wisconsin Complaint paragraph 248)
294.In 1965, in response to Federal Trade Commission efforts to regulate
cigarette advertising, the cigarette companies created a self-regulatory cigarette
advertising and promotional code. The code prohibited testimonials from
athletes or other celebrities perceived to appeal to the young, representations
that smoking was essential to social success, representations that the
healthiness of models was due to cigarette smoking, the use of models who were
participating in physical activity or the use of models who were younger, or
appeared younger, than 25 years of age. Such guidelines have been routinely
ignored and violated. Indeed, four months after the code had been put into effect,
Viceroy ads depicted tennis players smoking, Salem ads utilized images of a
young couple playing alongside a waterfall and a television producer admitted
to looking for models for cigarette advertisements who were over 25 but
appeared to be younger.(Wisconsin Complaint paragraph 249)
295.In late 1980, the Tobacco Institute, on behalf of the tobacco companies,
inaugurated a new public relations campaign designed to convince the general
public, the federal government and state governments that the tobacco
companies wished to discourage young people from using tobacco products.
Several tobacco companies began their own campaigns at the same
time.(Wisconsin Complaint paragraph 250)
296.In fact, these programs were and are just a continuation of the tobacco
companies' ongoing campaign of misrepresentation, disinformation and
conspiracy. Brochures, like "Tobacco: Helping Youth Say No," are being
distributed by the Tobacco Institute and tobacco product manufacturers. In
reality, these brochures are a subterfuge designed to promote tobacco product
use. The brochure presents tobacco product use as a permissible "adult"
decision and as something an "adult" can safely do. The only reason given to
children for not using tobacco products is that--like getting married or driving a
car--smoking is for grownups. Such messages really make smoking more
desirable to kids. An RJR brochure even tells parents to tell their children that
the parents smoke "because they enjoy it." None of these brochures disclose
that smoking is highly addictive and kills people.(Wisconsin Complaint paragraph
251)
297.The tobacco companies' wrongful conduct has gone on for years and
continues to date. In January, 1990, in response to letters received from school
children, the manager of public relations of RJR wrote the principal of a public
school that:
The tobacco industry considers smoking to be a custom for those adults
who derive pleasure from it. We believe that whether to smoke or not is
a decision that should be freely made by individuals who have reached
the age of mature judgment. The tobacco industry is also concerned
about the charges being made that smoking is responsible for so many
serious diseases. Long before the present criticism began the tobacco
industry in a sincere attempt to determine the harmful effects, if any,
smoking might have on human health, established the Council for
Tobacco Research-USA. The industry has also supported research grants
by the American Medical Association. Over the years the tobacco
industry has given in excess of $162 million to independent research on
the controversies surrounding smoking--more than all voluntary health
associations combined.
Despite all the research going on, the simple and unfortunate fact is that
scientists do not know the cause or causes of the chronic diseases
reported to be associated with smoking. The answers to many
unanswered controversies surrounding smoking-- and the fundamental
causes of the diseases often statistically associated with smoking--we do
believe can only be determined through much more scientific research.
Our company intends, therefore, to continue to support such research in
a continuing search for answers.
We would appreciate your passing this information along to your students
. . . .(Wisconsin Complaint paragraph 252)
298.In conclusion, the Tobacco Companies' claims that they do not want
adolescents to use tobacco products simply do not ring true. More honest,
unfortunately, is the response of an RJR executive to the question of a former
"Winston Man," David Goerlitz, when he asked why the Reynolds executives did
not smoke, "We don't smoke the shit, we just sell it. We reserve that for the
young, the black, the poor and the stupid."(Wisconsin Complaint paragraph 253)
2. Use of Appealing Images
299.The advertising imagery used to promote cigarette smoking among
young people has been designed to particularly appeal to those with low self
esteem and emotional insecurity. Once the young person has been predisposed
toward smoking, a variety of factors can precipitate actual experimentation. For
many young people, the precipitating factor is being given a free pack of
cigarettes by a tobacco company representative, or purchasing cigarettes in
order to obtain an attractive tee shirt, baseball cap, or other gimmick used to
promote cigarette smoking.(Illinois Complaint paragraph 205)
300.One of the best examples of this was the transformation of Marlboro
Cigarettes from a red-tipped cigarette for women to the cigarette for the macho
cowboy. By changing advertising imagery, Philip Morris was able to tap into a
wholly new and different market. In 1950, Reynolds was the king of the cigarette
business. It sold more cigarettes than any other company. Philip Morris, though
doing well on the basis of its fraudulent health-oriented advertising, was still far
behind. In 1981, Philip Morris passed Reynolds in market share and each year
has extended its lead by developing an effective marketing campaign for
recruiting young new smokers to its brands. The wild spirit of the Marlboro man
captured the adolescent imagination. Also, Philip Morris representatives fanned
out to colleges across the country, giving free cigarettes to incoming freshmen
to get them hooked. The children and teenagers who started smoking Marlboro
became tenaciously loyal customers. Soon, Marlboro became the gold standard
of cigarettes among teenagers. Up until 1988, nearly three-fourths of teenage
smokers used Marlboro.(Illinois Complaint paragraph 206)
301.At about the time it lost market leadership to Philip Morris, Reynolds
dedicated itself to a ruthless advertising campaign encouraging children and
teenagers to smoke. One of the key elements of the Reynolds strategy for
attracting children was to reposition many of its cigarette brands to younger
audiences.(Illinois Complaint paragraph 207)
302.Reynolds' Vantage cigarettes entered the 1980's as a brand targeted at
the health conscious adult smoker. Advertisements were intended to assuage
fears of lung cancer and other diseases, and give concerned smokers arguments
for rationalizing their continuation of the addiction. Through multiple advertising
transmogrifications, Vantage cigarettes have been progressively repositioned to
ever-younger audiences. During the mid-1980's this advertising campaign
featured young successful professionals (including architects, fashion designers,
lawyers, etc.) with the slogan "The taste of success." These ads promoted the
implication that smoking is helpful - if not essential - to social success or
prominence. This is an image designed to appeal to underage smokers who
dream of becoming successful professionals. In the late 1980's the advertising
theme for Vantage cigarettes began to feature professional-caliber athletes like
wind surfers, aerobic dancers, downhill ski-racers, and auto-racers. These
advertisements depict physical activity requiring strength or stamina beyond
those of everyday activity, clearly suggesting that smoking is not harmful.(Illinois
Complaint paragraph 208)
303.During the 1980's, advertising for Salem cigarettes also became more
youth-oriented. Whereas the dominant advertising theme for Salem cigarettes
used to be clean fresh country air, during the 80's Salem ads were populated by
muscular surfers and beach bunnies, fun-loving party animals, and other
attractive adolescent role models. Another successful advertising campaign
targeted at young people is the Lorillard campaign promoting Newport cigarettes.
Newport ads frequently show men and women in sexually suggestive positions,
always having fun, using the slogan "Alive with pleasure."(Illinois Complaint
paragraph 209)
304.Perhaps the most acute psychological need of adolescence is to fit in,
to be accepted, to be popular. Ads for Philip Morris' Benson & Hedges cigarettes
thus developed an image of smoking as a happy pleasure to be shared in the
company of others, and the easy road to instant acceptance within a
group.(Illinois Complaint paragraph 210)
305.A status symbol and secret desire of many teenage boys is a powerful
motorcycle. It is for this reason that so many cigarette brands have used
motorcycle imagery to encourage teenage boys to smoke. Many cigarette ads
that target young boys glamorize high risk activities like hang gliding, motorcycle
racing, mountain climbing, etc. Cigarette makers do this deliberately to
undermine awareness that smoking is dangerous. In its campaign to attract
adolescent boys to become smokers, the Reynolds cigarette company has made
extensive use of risk-taking and danger in its advertising. By glorifying
risk-taking, these ads have a more insidious purpose. How a person estimates
the magnitude and likelihood of a risk can be significantly affected by what it is
compared against. By portraying extremely dangerous activities like
hang-gliding, mountain climbing, and stunt motorcycle riding, Reynolds
minimizes the dangers of smoking in adolescent minds.(Illinois Complaint
paragraph 211)
3. Light Cigarettes: A Marketing Hoax
306.The tobacco companies' manipulation of nicotine is particularly
deceptive in its marketing of "light" or low-tar and low-nicotine cigarettes to
retain the "health conscious" segment of the smoking market. Recent studies
demonstrate that cigarettes advertised as low tar and low nicotine actually have
higher concentrations of nicotine, by weight, than high yield cigarettes.
Nevertheless, the tobacco companies have successfully identified "light"
cigarettes to consumers as a reduced tar and reduced nicotine product. The
tobacco companies have accomplished this deception through several
strategies.(Wisconsin Complaint paragraph 185)
307.First, tobacco companies have designed their "light" products so that
advertised tar and nicotine levels, as measured by the FTC method, understate
the amounts of tar and nicotine actually ingested by human smokers. Such
design features include a technique called filter ventilation in which nearly
invisible holes are drilled in the filter paper, or the filter paper is made more
porous. Predictably, many smokers of advertised low tar and nicotine cigarettes
block the tiny, laser-generated perforations in ventilated filters with their fingers
or lips, thereby resulting in greater tar and nicotine yields to those smokers than
those measured by the FTC smoking machine. (Wisconsin Complaint paragraph
186)
308.Tobacco companies know that the ability to block ventilation holes
allows smokers to "compensate" for nicotine losses that would otherwise be
caused by tar-reducing modifications. The industry has studied smoker
compensation in order to design cigarettes that allow smokers to compensate
for lower nicotine yields. One such design feature is known as "elasticity." This
refers to the ability of a cigarette, whatever its FTC measured nicotine yield, to
deliver enough smoke to permit a smoker to obtain the nicotine he needs, e.g.,
through more or longer puffs, or by covering ventilation holes.(Wisconsin
Complaint paragraph 187)
309.Industry studies show that smokers tend to obtain close to the same
amount of nicotine from each cigarette despite differences in yield as measured
by the FTC smoking machine. At a 1974 BAT conference, researchers described
the result of one such study, "The Kippa study in Germany suggests that
whatever the characteristics of cigarettes as determined by smoking machines,
the smoker adjusts his pattern to deliver his own nicotine requirements (about
0.8 mg. per cigarette)."(Wisconsin Complaint paragraph 188)
310.Second, the FTC testing method does not distinguish between the slower
acting salt-bound nicotine and the more potent "free" nicotine that ammonia
helps release. An ammoniated cigarette that delivers more potent nicotine to
smokers measures the same as a cigarette with no such additives.(Wisconsin
Complaint paragraph 189)
311.The use of ammonia is another method used by the tobacco companies
to reduce the FTC measured tar and nicotine levels in their cigarettes over the
past two decades while still furnishing smokers with sufficient nicotine delivery.
According to John Kreisher, a former associate scientific director for CTR,
"[a]mmonia helped the industry lower the tar and allowed smokers to get more
bang with less nicotine. It solved a couple of problems at the same
time."(Wisconsin Complaint paragraph 190)
312.Third, the tobacco companies maintain that nicotine levels follow tar
levels. In the words of Dr. Alexander Spears, vice chairman of Lorillard, in his
1994 testimony before the Waxman Subcommittee -- "[n]icotine [level] follows the
tar level," and the correlation between the two "is essentially perfect," and
"shows that there is no manipulation of nicotine." As Dr. Spears neglected to
mention to Congress, however, in a 1981 study not intended for public release,
he stated explicitly that low-tar cigarettes use special blends of tobacco to keep
the level of nicotine up while tar is reduced, "[T]he lowest tar segment [of
product categories] is composed of cigarettes utilizing a tobacco blend which is
significantly higher in nicotine."(Wisconsin Complaint paragraph 191)
313.RJR, ATC and the Tobacco Institute have similarly represented to the
public and to the FDA that the nicotine levels in their products are purely a
function of setting the tar levels of such products.(Wisconsin Complaint
paragraph 192)
314.ATC told the Waxman Subcommittee in an October 14, 1994, letter that
"nicotine follows 'tar' delivery, i.e. high 'tar' -high nicotine, low 'tar' -- low
nicotine . . . . Nicotine is neither adjusted nor altered to compensate for losses
inherent in the manufacturing process." Internal company documents reviewed
by the Waxman Subcommittee show, however, that ATC's experimentation with
adding nicotine to its tobacco was extensive--extensive enough for ATC
executive John T. Ashworth to instruct employees in a confidential
memorandum, "In the future, our use of nicotine should be referred to as
'Compound W' in our experimental work, reports, and memorandums, either for
distribution within the Department or for outside distribution."(Wisconsin
Complaint paragraph 193)
315.Recent tests conducted at the direction of the FDA show that the low-tar
brands actually have more nicotine by weight than the non-"light" brands. The
Defendants' misrepresentation that cigarettes with lower levels of tar also have
lower levels of nicotine seriously misleads consumers and renders false the
industry's claim of an "essentially perfect" correlation between reduced tar and
nicotine levels. According to the FDA, this has been accomplished by a
combination of the methods described above for boosting nicotine delivery to
compensate for nicotine losses from the application of tar-reducing design
modifications. The tobacco companies thereby maintain a continuing market for
a product that consumers are misled to believe contains less of all of the harmful
ingredients in regular cigarettes.(Wisconsin Complaint paragraph 194)
316.Notwithstanding the tobacco companies' ongoing manipulation and
control of nicotine levels in tobacco products, the tobacco companies continue
to deny to the public, and recently denied to Congress under oath, that they
control nicotine levels in their products.(Wisconsin Complaint paragraph 195)
317.Top executives from Philip Morris, RJR, Lorillard, Liggett, B&W and U.S.
Tobacco testified before the Waxman Subcommittee in April 1994 that their
respective companies do not manipulate nicotine, add it, independently control
it, restore it during the manufacturing process, or otherwise achieve a minimum
level of nicotine in their products. Thomas E. Sandefur, Jr., then CEO of B&W,
admitted that the company controlled nicotine, but in a now familiar refrain,
stated that the company did so only for "taste."(Wisconsin Complaint paragraph
196)
318.As recently as April 1994, tobacco companies placed advertisements
across the country denying that they believe the use of tobacco products is
addictive, and misleading the public about whether the tobacco companies
deliberately control nicotine levels in their products.(Wisconsin Complaint
paragraph 197)
319.RJR placed advertisements in newspapers across the United States in
1994 stating that "we do not increase the level of nicotine in any of our products
in order to 'addict' smokers. Instead of increasing the nicotine levels in our
products, we have in fact worked hard to decrease 'tar' and nicotine . . . ." RJR's
advertisement then touted its use of "various techniques that help us reduce the
'tar' (and consequently the nicotine) yields of our products."(Wisconsin
Complaint paragraph 199)
320.These statements mislead the consuming public because, as set forth
above, Philip Morris and RJR use various sophisticated techniques to increase
the nicotine content in their tobacco products and the actual nicotine delivery to
the tobacco products user.(Wisconsin Complaint paragraph 200)
321.As a result of Defendants' actions, as many as 74% to 90% of tobacco
products' users are addicted. Eight out of ten smokers say they wish they had
never started smoking. 74% of young people regularly using smokeless tobacco
find quitting extremely difficult. Over 90% experience withdrawal symptoms
when they try. Two-thirds of adults who smoke say they wish they could quit.
4. Smokeless Tobacco Products
322.The Defendants B&W and Reynolds also manufacture and distribute
loose tobacco used in the "roll your own" process of cigarette-making.(Illinois
Complaint paragraph 229)
323.Even though the medical evidence regarding the hazards of cigarette
smoking and addiction have been known to the Defendants for many years, the
packages and containers of the "roll your own" tobacco bear no warning
regarding such hazards.(Illinois Complaint paragraph 230)
324.Despite their knowledge that the use of smokeless tobacco is, as a result
of nicotine, extremely addictive, the Tobacco Companies to this day deny that
smoking,"dipping," or "chewing" tobacco is addictive. Through their individual
advertising and public relations campaigns, and collectively, through the
Tobacco Institute, the Tobacco Companies have successfully promoted and sold
tobacco products by concealing and misrepresenting the highly addictive nature
of cigarettes and smokeless tobacco.(Illinois Complaint paragraph 231)
325.Defendant United States Tobacco Company makes approximately 90%
of the oral snuff and chewing tobacco sold in the United States. As alleged
above, smokeless tobacco delivers a similar amount of nicotine as cigarettes and
is equally as addictive. Plaintiffs are informed and believe that smokeless
tobacco manufacturers intend to cause nicotine dependence among consumers
through a strategy that involves promoting to the user of lower nicotine brands
with the intent of moving users up to higher, more addictive brands over time.
The "graduation" strategy calls for three different brands of low, medium, and
high nicotine content. The strategy is based on the premise that new users of
smokeless tobacco are most likely to begin with products that are milder tasting,
more flavored and lighter in nicotine content. After a period of time, there is a
natural progression to products that are more full-bodied and have more
concentrated tobacco taste, with more nicotine, than the entry brand. This
graduation strategy is supported by the manufacturers' advertising practices
which indicate the manufacturers' intent to have consumers experiment with
low-nicotine brands and graduate to higher-nicotine brands over time. The FDA's
1995 investigation into nicotine and tobacco products found, that with respect
to smokeless products, "tobacco manufacturers control the delivery of nicotine"
so that products that deliver lower doses of nicotine are provided to "new users"
who are then encouraged by tobacco marketing to "graduate" to products that
deliver "higher doses of nicotine."(Illinois Complaint paragraph 232)
H. THE CONTINUING CONSPIRACY
1. The "Gentlemen's Agreement"
326.The industry's 1953 combination and conspiracy was supplemented and
aided by a commitment jointly to conduct research because of "a general feeling
that an industry approach as opposed to an individual company approach was
highly desirable." This approach was desirable to prevent, among other things,
competition on the basis of health risk comparisons.(IL complaint p. 20):
327.As part and in furtherance of the agreement not to compete to develop
a "safer" cigarette, there was a "gentlemen's agreement" among the
manufacturers to suppress independent research on the issue of smoking and
health, for the purpose of and with the effect of restricting output. Despite
increasing market demand, the tobacco manufacturers agreed not to market any
safer or alternative products. The means of effecting this output reduction
conspiracy included suppression of independent research and policing violators,
as described below. This agreement was referenced in a 1968 internal Philip
Morris draft memo, which stated, "We have reason to believe that in spite of
gentlemans [sic] agreement from the tobacco industry in previous years that at
least some of the major companies have been increasing biological studies
within their own facilities." This memo also acknowledged that cigarettes are
inextricably intertwined with the health field, stating, "Most Philip Morris products
both tobacco and non-tobacco are directly related to the health field."(IL
complaint p. 20):
328.As indicated by this memo, it was believed within the industry that
individual companies were performing certain research on their own, in addition
to the joint industry "research." Some companies viewed the strengthening
demand for safer and alternative products as a potential future marketing
opportunity. But the fundamental understanding and agreement remained: That
information and activities deemed harmful to the unified, defensive posture of the
industry or inconsistent with the non-competition conspiracy would be
restrained, suppressed, and/or concealed. No company or industry trade
organization stood behind the "promise" the Defendants had made. As American
Tobacco's CEO testified, "[If the health studies are correct], consumers have the
right to know whatever is affecting their health. I think that's what the public
health agencies and the government have that responsibility [emphasis
added]."(IL complaint p. 20):
329.The agreement not to compete was explicitly referenced in an October,
1964 memorandum entitled "Reports on Policy Aspects of the Smoking and
Health Situation in U.S.A.":
The informal agreement between TRC members not to make health
claims was explained to Phillip Morris.(IL complaint p. 20):
330.Defendants' activities in furtherance of the
output-restriction/non-competition combination included restraining,
suppressing, and concealing research on the health effects of smoking, including
the addictive properties of tobacco products, and restraining, concealing, and
suppressing the research and marketing of safer cigarettes. Despite the ability
to produce "safer" cigarettes, the Defendants did not market such products,
except in limited test markets, because it was understood within the combination
that no company would characterize or promote a product as biologically
"safer."(IL complaint p. 20):
331.Like all classic cartels, Defendants policed their conspiracy internally and
externally. One member of the conspiracy, U.S. Tobacco, went so far as to
terminate an employee and apologize to the Big 6 cigarette companies when the
employee was quoted in a New York Post article referring to smokeless tobacco
as less dangerous than smoking. Ernest Pepples of B&W reported this in a
memo, where he wrote that he had been called by UST's General Counsel, Jim
Chapin. Pepples stated, "Chapin says the statements quoted were unauthorized
and do not represent his company's views. He has asked me to extend U.S.
Tobacco's apology to each of the cigarette companies and advised me that the
individual quoted in the article is no longer employed at U.S. Tobacco. Chapin
says U.S. Tobacco has instituted smoking and health seminars throughout the
company." This action is totally contrary to the self-interest of U.S. Tobacco, and
is consistent with the conspiracy among the Defendants not to compete on the
basis of safety and health.(IL complaint p. 20):
2. Other Evidence of the Continuing Conspiracy
332.In 1968, a memo addressed to the CEO of Liggett regarding a meeting of
the research directors of the tobacco companies stated on the topic of tobacco
and health "a general feeling that an industry approach as opposed to an
individual company approach was highly desirable."(WI complaint p. 13)
333.An example of the industry's united front and concerted action was
demonstrated in 1977 after it was revealed that an employee of U.S. Tobacco had
stated to The New York Times that "[smokeless tobacco] presents the least
possible danger of all [and] that it's when you light tobacco that you start doing
damage." U.S. Tobacco apologized to each of the cigarette companies despite
the fact that the disclosure did not directly implicate its own products. U.S.
Tobacco assured the cigarette companies that the employee is "no longer
employed at U.S. Tobacco." Additionally, U.S. Tobacco assured the other
companies that it had undertaken action to prevent a similar breach by its
employees. U.S. Tobacco instituted a program within its company to educate its
employees that the industry position was to disavow any relationship between
tobacco products and disease.(WI complaint p. 13)
334.Cigarette manufacturers and smokeless tobacco manufacturers
monitored each other's research to assure that their common objectives were
achieved. Thus, B&W joined the STC in order to make sure that research that
confirmed the link between tobacco product use and adverse health
consequences was not done. B&W described its reason for joining the STC this
way: "The primary purpose of such membership, however, would be to know
what the Smokeless Tobacco Council is doing as a protective measure both for
our interest in that product area and against the possibility that some research
they do could impact on our cigarette business."(WI complaint p. 13)
I. THE HUMAN TOLL OF TOBACCO USE
1. The Harmful and Addictive Nature of Nicotine
335.The nicotine in tobacco products is addictive. Nicotine is recognized as
an addictive substance by such major medical organizations as the Office of the
U.S. Surgeon General, the World Health Organization, the American Medical
Association, the American Psychiatric Association, the American Psychological
Association, the American Society of Addiction Medicine, and the Medical
Research Council in the United Kingdom. All of these organizations
acknowledge tobacco use as a form of drug dependence or addiction with severe
adverse health consequences.(Wisconsin Complaint paragraph 261).
336.The Tobacco Companies reap enormous profits from their manufacture
and sale of cigarettes throughout the United States, including the State of Illinois
and Cook County. The Tobacco Companies' earnings in 1996 alone exceeded six
billion dollars involving gross sales of forty-five billion dollars. The Tobacco
Companies make, advertise and sell cigarettes despite their knowledge of the
following facts: more than 10 million Americans have died as a result of smoking
cigarettes; more than 420,000 Americans die every year as a result of smoking
cigarettes; almost one death in every five is due to a smoking related illness; the
leading cause of preventable death in the United States today is smoking
cigarettes; smoking causes cardiovascular disease and is responsible for
approximately one-third of all heart disease deaths; smoking causes almost all
lung and throat cancers and is responsible for approximately one-tenth of all
cancer deaths; smoking causes various pulmonary diseases, including
emphysema; smoking causes stillbirths and neonatal deaths among the babies
of mothers who smoke; and cigarettes may contain any number of approximately
700 "additives," including a number of toxic and dangerous chemicals.
Congressman Henry W. Waxman (D. Calif.), former Chairman of the House
Subcommittee on Health and the Environment, has stated "that cigarettes are the
single most dangerous consumer product ever sold."(Arch Complaint paragraph
15).
337.Despite the overwhelming weight of scientific evidence that smoking
cigarettes poses serious health risks, and despite the gruesome statistical legacy
being left by the Tobacco Industry, over 3 million Illinois residents continue to
smoke cigarettes, including many new teenage smokers everyday, because they
are addicted to or are dependent upon these products. More specifically, they are
addicted to nicotine, the drug in tobacco that causes an addiction similar to that
suffered by users of heroine and cocaine.(Arch Complaint paragraph 16).
338.Cigarettes contain nicotine. Nicotine is an addictive substance and the
use of cigarettes results in addiction to them. Nicotine causes compulsive use
of cigarettes, despite knowledge that they are harmful, if not lethal; nicotine has
a psychoactive (mood-altering) effect in the brain; and, nicotine invokes what is
called "reinforcing behavior," causing continued use of the nicotine containing
products. Cigarette smokers suffer an inability to quit, notwithstanding a desire
to do so, and those who do quit (or attempt to) endure withdrawal symptoms
such as headaches, insomnia, depression, lack of concentration, and
anxiety.(Arch Complaint paragraph 17).
339.The addictive power of nicotine is further illustrated by these statistical
facts: at least two thirds of adults who smoke say they wish they could quit; 17
million Americans try to quit smoking each year, but fewer than 1 out of 10
succeed; for every smoker who quits, 9 try and fail; 8 out of 10 smokers say they
wish they had never started smoking; after surgery for lung cancer, almost half
of the smokers resumed smoking; among smokers who suffer heart attack, 38%
resume smoking while they are still in the hospital; even when a smoker has their
larynx removed, 40% try smoking again; 7096 of young people ages 12 to 18 who
smoke say they believe they are already dependent on cigarettes; and 40% of
high school seniors who smoke regularly have tried to quit and failed. According
to Dr. Kessler, "once they have started regularly, most smokers are in effect
deprived of the choice to stop smoking . . . . Seventeen million Americans try to
quit smoking each year. But, more than fifteen million are unable to exercise that
choice because they cannot break their addiction to cigarettes."(Arch Complaint
paragraph 18).
340.The 1988 Surgeon General's Report, The Health Consequences of
Smoking: Nicotine Addiction" contained these conclusions: (A) "Cigarettes and
other forms of tobacco are addicting.; (B) "Nicotine is the drug in tobacco that
causes addiction.; and (C) "The pharmacologic and behavioral processes that
determine tobacco addiction are similar to those that determine addiction to
drugs such as heroine and cocaine."
341.Nicotine is now recognized as an addictive substance by such major
medical organizations as the Office of U.S. Surgeon General, the World Health
Organization, the American Medical Association, the American Psychiatric
Association, the American Psychological Association, the American Society of
Addiction Medicine, the American Public Health Association and the Medical
Research Counsel in the United Kingdom. The National Institute of Drug Abuse
has called cigarette smoking the most common example of drug dependence in
the United States.(Arch Complaint paragraph 20).
342.Despite the recent recognition of nicotine's addictive properties by these
and other organizations, the Tobacco Companies and their Distributors continue
to misinform the American public in general and the residents of the State of
Illinois who are members of this Class. Although it now appears that the
Tobacco Companies have known for decades, on the basis of their own
long-concealed research and testing, that nicotine is addictive, they have denied,
and continue to deny, that nicotine is addictive. The Tobacco Companies'
insistent and affirmative denial that nicotine is addictive, coupled with their
pervasive advertising, promotional and public relations strategy, is designed to
and has effectively nullified the public's meaningful appreciation of the nature
and extent of nicotine dependence. Specifically, the Tobacco Companies'
emphasis on smoking as a voluntary, personal choice and its positive social
benefits misleads the public, especially the impressionable young people, into
thinking that smoking may be stopped as easily as started. Knowledge of
addiction may thus come too late, when the phenomenon of addiction prevents
or complicates any "personal choice" to quit.(Arch Complaint paragraph 21).
2. The Health Effects of Smoking
343.The human tragedy of tobacco-related disease is profound. The death
toll in one year alone from cigarette smoking equals the number of American
lives lost in battles in all the wars this country has fought this century. Use of
tobacco products is the leading cause of preventable death in the United
States.(Wisconsin Complaint paragraph 254).(Wisconsin Complaint paragraph
255).
344.At least 43 chemicals in the smoke inhaled by persons consuming the
products have been determined to be carcinogenic. Cigarette smoking causes
more than 85% of all lung cancer, which has now surpassed breast cancer as the
primary cause of death from cancer among women. Smoking is virtually the only
cause of throat cancer, and also causes cancers of the mouth, larynx,
esophagus, stomach, pancreas, uterus, cervix, kidney and colon, among others.
All told, cigarette smoking is responsible for at least 30% of all deaths from
cancer.(Wisconsin Complaint paragraph 256).
345.Smoking is the cause of more than 80% of deaths from pulmonary
diseases such as emphysema and bronchitis. These chronic obstructive lung
diseases have a profound social impact because of the extended disability of
their victims.(Wisconsin Complaint paragraph 258).
346.Smoking is one of three major independent causes of coronary heart
disease. Smoking is also responsible for thousands of deaths from
cardiovascular disease, including stroke, heart attack, peripheral vascular
disease and aortic aneurysm. Nicotine itself causes cardiovascular problems,
including narrowing of blood vessels, increased blood pressure and changes in
lipid metabolism which contribute to myocardial infarctions. The use of tobacco
products is also linked to a large number of other serious illnesses.(Wisconsin
Complaint paragraph 259).
347.If an adolescent's tobacco use continues for a lifetime, there is a 50%
chance that the person will die prematurely as a direct result of smoking.
Moreover, the earlier a young person's smoking habit begins, the more likely he
or she will become a heavy smoker and therefore suffer a greater risk of smoking
related diseases. Smoking is responsible for about 90% of all lung cancer
deaths; 87% of deaths from COPD; 21% of deaths from coronary heart disease;
and 18% of deaths from stroke. Further, a causal relationship exists between
cigarette smoking and cancers of the larynx, mouth, esophagus, and bladder;
and atherosclerotic peripheral vascular disease, cerebrovascular disease (stroke),
and low-birth weight babies. Cigarette smoking is also a probable cause of
infertility and peptic ulcer disease and contributes to, or is associated with,
cancers of the pancreas, kidney, cervix, and stomach.(Illinois Complaint
paragraph 233).
348.Epidemiologic studies provide overwhelming evidence that smoking
causes lung cancer. The risk of getting lung cancer may be more than 20 times
greater for heavy smokers than nonsmokers. The relationship between smoking
and lung cancer is due to the numerous carcinogens in cigarette smoke.
Cigarette smoking caused an estimated 117,000 deaths from lung cancer in
1990.(Illinois Complaint paragraph 234).
349.The risk of getting lung cancer increases with the number of cigarettes
smoked and the duration of smoking, and decreases after cessation of smoking.
Starting smoking at an earlier age increases the potential years of smoking and
increases the risk of lung cancer. Studies have shown that lung cancer mortality
is highest among adults who began smoking before the age of 15.(Illinois
Complaint paragraph 235).
350.The risk of oral cancer among current smokers ranges from 2.0 to 18.1
times the risk in people who have never smoked and can be reduced more than
50% after quitting. The risk of esophageal cancer among current smokers ranges
from 1.7 to 6.4 times the risk in people who have never smoked and can also be
reduced by about 50% after quitting.(Illinois Complaint paragraph 236).
351.Epidemiological studies demonstrate that cigarette smoking contributes
to the development of pancreatic cancer. The reason for this relationship is
unclear, but may be due to carcinogens or metabolites present in the bile or
blood. In 1985, the proportion of pancreatic cancer deaths in the United States
attributable to smoking was estimated to be 29% in men and 34% in
women.(Illinois Complaint paragraph 237).
352.Cigarette smoking accounts for an estimated 30 to 40% of all bladder
cancers and is a contributing factor for kidney cancer. The increased risk of
kidney and bladder cancer may be related to the number of cigarettes smoked
per day, and the risk decreased following smoking cessation.(Illinois Complaint
paragraph 238).
353.Smoking is a contributing factor for cancer of the cervix. The
association between cigarette smoking and cervical cancer persists after control
is made for risk factors, such as age at first intercourse and the number of
sexual partners, that predispose a woman to developing sexually-transmitted
diseases. The inclusion of these risk factors, however, may not completely rule
out confounding by sexually-transmitted diseases. The findings that
components of tobacco smoke can be found in the cervical mucus of smokers,
and the mucus of smokers is mutagenic, and that former smokers have a lower
risk of getting cervical cancer than current smokers are consistent with the
hypothesis that smoking is a contributing cause of cervical cancer.(Illinois
Complaint paragraph 239).
354.The 1982 Surgeon General's Report concluded that stomach cancer is
associated with cigarette smoking.(Illinois Complaint paragraph 240).
355.Smoking is a leading cause of heart disease. The 1964 Surgeon
General's Report noted that male cigarette smokers had higher death rates from
coronary heart disease than nonsmokers. Subsequent reports have concluded
that cigarette smoking contributes to the risk of heart attacks, chest pain, and
even sudden death. Overall, smokers have a 70% greater death rate from
coronary heart disease than nonsmokers.(Illinois Complaint paragraph 241).
356.Ischemic heart disease resulting from cigarette smoking claimed nearly
99,000 lives in 1990. One study estimates that smoking causes 30 to 40% of all
deaths due to coronary heart disease. Smokers between the ages of 40 and 64,
who smoked more than one pack a day, were shown to have a risk of coronary
heart disease that is 3.2 times higher than people who do not smoke.(Illinois
Complaint paragraph 242).
357.Smoking also increases a person's risk of atherosclerotic peripheral
vascular disease, especially if the smoker is diabetic. Complications of this
disease include decreased blood delivery to the peripheral tissues, gangrene,
and ultimately loss of the affected limb. Smoking cessation is the most important
intervention in the management of peripheral vascular diseases.(Illinois
Complaint paragraph 243).
358.Smoking is a cause of stroke. Stroke is the third leading cause of death
in the United States. The association of smoking with stroke is believed to be
mediated by the mechanisms responsible for atherosclerosis (narrowing and
hardening of the arteries), thrombosis, and decreased cerebral blood flow in
smokers. Female smokers who use oral contraceptives are at an increased risk
of having a stroke.(Illinois Complaint paragraph 244).
359.The risk of death from COPD may depend on how many cigarettes a
person smokes daily, how deeply the person inhales, and the age when the
person began smoking. The number of cigarettes smoked per day is a strong
indicator for the presence of the principal symptoms of chronic respiratory
illness, including chronic cough, phlegm production, wheezing, and shortness
of breath.(Illinois Complaint paragraph 245).
360.Smoking's detrimental effect on lung structure and function appear
within a few years after cigarette smoking begins. Children who smoke are more
likely to suffer from respiratory illnesses than children who do not smoke.
Adolescents who smoke may experience inflammatory changes in the lung,
reduced lung growth, and may not achieve normal lung function as an
adult.(Illinois Complaint paragraph 246).
361.Cigarette smoking is a probable cause of peptic ulcer disease. Peptic
ulcer disease is more likely to occur in smokers than in nonsmokers, and the
disease is less likely to heal, and more likely to cause death in smokers than
nonsmokers. Quitting smoking reduces the chances of getting peptic ulcer
disease and is an important component of effective peptic ulcer treatment.(Illinois
Complaint paragraph 247).
362.When inhaled, cigarette smoke causes a variety of diseases, including
but not limited to:
a.premature death;
b. cancer of the lungs, throat, mouth, larynx, esophagus, stomach, pancreas,
uterus, cervix, kidney, colon, bladder, gums, cheeks, hypopharynx and
oropharynx;
c. cardiovascular disease;
d. emphysema;
e.bronchitis;
f. Chronic Obstructive Pulmonary Diseases (COPD);
g.coronary heart disease;
h. atherosclerotic peripheral vascular disease;
i.cerebrovascular disease (stroke);
j.Ischemic heart disease;
k.atherosclerosis;
l.thrombosis;
m.Obstructive lung disease;
n.stillbirths;
o.neonatal deaths;
p.low-birth weight babies;
q.infertility;
r.peptic ulcer disease;
s.oral leukoplakia;
t.gum disease; and
u.tooth loss.(Various complaint)
363.Cigarettes contain hazardous substances that cause serious and often
fatal diseases of the throat, lungs, and heart, as well as the cardiovascular and
pulmonary systems generally, and cause stillbirths and neonatal deaths of babies
whose mothers smoke. The hazardous substances include nicotine, which is a
powerful addictive drug, the withdrawal of which causes headaches, insomnia,
depression, lack of concentration and anxiety. Because of the powerful addiction
and the withdrawal symptoms caused by cigarettes which include nicotine
withdrawal, persons who try to quit smoking, including class members, can do
so only with great difficulty, and most persons who try to quit smoking cannot
do so on a permanent basis.(Clay Complaint paragraph 42).
3. The Health Effects of Smokeless Tobacco Products
364.Smokeless tobacco, including snuff and chewing tobacco, has been
shown to cause oral cancer, gum disease and tooth loss. Long term snuff users
are 48 times more likely than non-users to develop cancers of the gingiva (gums)
and buccal mucosa (cheek) and four times more likely to develop mouth cancer
than non-users. Persons using chewing tobacco are six times more likely to
develop cancer of the mouth or hypopharynx and three times more likely to
develop cancer of the oropharynx than non-users. (Wisconsin Complaint
paragraph 257).
365.Smokeless tobacco use can cause oral cancer. The risk of oral cancer
increases with increased exposure to smokeless tobacco products, particularly
in those areas of the mouth where smokeless tobacco products are used. The
risk of cheek and gum cancers is nearly 50 times greater in long-term snuff users
than in nonusers. Snuff and chewing tobacco contain potent carcinogens,
including nitrosamines, polynuclear aromatic hydrocarbons and radioactive
polonium.(Illinois Complaint paragraph 251).
366.Smokeless tobacco use can cause oral leukoplakia, a precancerous
lesion of the soft tissue that consists of a white patch or plaque that cannot be
scraped off. One study of 117 high school students who were smokeless
tobacco users revealed that nearly 50% of these students had oral tissue
alterations. There is a 5% chance that oral leukoplakias will transform into
malignancies in 5 years. The leukoplakia appears to decrease or resolve upon
cessation of smokeless tobacco use.(Illinois Complaint paragraph 252).
367.Smokeless tobacco use causes oral cancer and oral leukoplakia and may
be associated with an increased risk of cancer of the esophagus. Smokeless
tobacco use has been implicated in cancers of the gum, mouth, pharynx and
larynx. Snuff use also causes gum recession and is associated with
discoloration of teeth and fillings, dental cavities and abrasion of the
teeth.(Illinois Complaint paragraph 253).
4. The Health Effects of Second Hand Smoke
368.The tobacco companies have also attempted to mislead the public
regarding the health risks of environmental tobacco smoke. Environmental
tobacco smoke, also called "second hand smoke," consists primarily of
sidestream smoke ("SSS") and mainstream smoke ("MSS"). SSS is the smoke
that issues from the end of a burning cigarette, cigar or pipe in between puffs.
MSS is the smoke that smokers draw into and expel from their lungs.
Approximately 85% of environmental tobacco smoke is SSS.(Wisconsin
Complaint paragraph 114).
369.The United States Environmental Protection Agency has listed
environmental tobacco smoke as a Class A (known human) carcinogen and a
major source of respiratory problems in children. It is estimated that
approximately 2,000 non-smoking Illinois residents die each year due to the
effects of environmental tobacco smoke.(Wisconsin Complaint paragraph 115).
370.The tobacco companies have long known that environmental tobacco
smoke is dangerous to human health but, despite their repeated promises to
investigate the health risks of their products, they have not disclosed this
knowledge to the public. For example, internal documents of B&W and BAT
demonstrate that, as early as the mid-1970's, the industry began the work of
identifying "sidestream constituents which may be considered harmful to non
smokers." Internal documents show that BAT was actively engaged in
measuring the levels of nitrosamine, a potent human carcinogen, in second hand
smoke:
It is clear that in many countries there is a concern over the level of
nitrosamine in foodstuffs. This explains in part the sensitivity to the
presence of nitrosamine in tobacco smoke, and, perhaps particularly, the
levels of nitrosamine in sidestream smoke. The latter is a potential threat
to the currently held view by many authorities that passive smoking does
not constitute a direct hazard.(Wisconsin Complaint paragraph 116).
371.In fact, in recognition of the dangers of environmental tobacco smoke,
B&W and BAT secretly attempted to reduce the amount of SSS from cigarettes.
Notes from a 1980 BAT research conference state, "There was strong support for
research into the generation and control of sidestream smoke . . . . The research
into the source and mechanism of formation of nitrosamine in both sidestream
and mainstream should be considered with urgency." Notes from a 1982
research conference state:
Sidestream has long been known to be different chemically from
mainstream, but only recently have there been signs from [BAT's]
inhalation studies that the biological activity [carcinogenic effect] of
sidestream may also be significantly different from mainstream. An early
design of reduced sidestream product developed at [BAT's] research
facilities in Southampton, England] has recently been screened.(Wisconsin
Complaint paragraph 117).
372.In conjunction with the attempt to reduce SSS because of its admitted
dangers, B&W and BAT--in violation of the promise to investigate in an unbiased
manner the health effects of smoking--also conducted defensive scientific
research designed "to anticipate and refute claims about the health effects of
passive smoking."(Wisconsin Complaint paragraph 118).
373.The attempt to mislead the public about the dangers of environmental
tobacco smoke and to conceal and distort the true facts was not limited to B&W
and BAT. The tobacco industry as a whole, through CTR and the Tobacco
Institute, also participated in the deception and wrongful conduct. For example,
CTR sponsored a research project on sick building syndrome to be conducted
by an allegedly independent firm. However, the Tobacco Institute, the industry's
chief public relations and lobbying arm, chose the homes that would participate
in the study. The Tobacco Companies also heavily relied on another study,
funded through an industry sponsored organization, to support its claim that the
dangers of environmental tobacco smoke were not proven. That study was later
found, following a congressional inquiry, to be rife with falsified data and grossly
underestimated the impacts of environmental tobacco smoke on indoor air
quality.(Wisconsin Complaint paragraph 119).
374.The Tobacco Companies have also attacked independent studies that
demonstrate the link between environmental tobacco smoke and adverse health
effects despite internally recognizing their validity. For example, a 1981
Japanese study found that non-smoking women married to smokers have a
greater chance of dying of lung cancer than non-smoking women married to
non-smokers. The Tobacco Institute immediately ran large advertisements in
newspapers and magazines denouncing the study despite the fact that industry
scientists privately recognized its validity.(Wisconsin Complaint paragraph 120).
5. The Health Effects of Smoking on Women,
Children and Developing Fetuses
375.Studies also show that women who smoke have reduced fertility. One
study showed that smokers were 3.4 times more likely than nonsmokers to take
more than 1 year to conceive.(Illinois Complaint paragraph 248).
376.Smoking's severe detrimental effects during pregnancy are well
documented. Women who smoke are twice as likely to have low birth weight
infants as women who do not smoke. Smoking also causes intrauterine growth
retardation of the fetus. Pregnant women who smoke also have increased rates
of premature delivery.(Illinois Complaint paragraph 249).
377.Smoking may lead to premature infant death. Babies born to women
who smoked while pregnant are more likely to die than babies born to women
who did not. A recent meta-analysis reported that use of tobacco products by
pregnant women results in 19,000 to 141,000 miscarriages per year, and 3,100 to
7,000 infant deaths per year. In addition, the meta-analysis attributed
approximately two-thirds of deaths from sudden infant death syndrome to
maternal smoking during pregnancy. By another estimate, if all pregnant women
stopped smoking, there would be 4,000 fewer infant deaths per year in the United
States.(Illinois Complaint paragraph 249).
J. TOLLING OF ALL STATUTES OF LIMITATION
378.All applicable statutes of limitation have been tolled by Defendants'
affirmative and intentional acts of concealment of the facts as alleged herein
from Plaintiffs and the class members.
379.Such acts of concealment include intentionally covering up and refusing
to disclose internal documents, suppressing and subverting medical and
scientific research, and failing to disclose and suppressing information
concerning the addictive properties of nicotine, the Defendants' control of the
levels of nicotine, and the true purpose of the CTR and TI as public relations
tools of the tobacco industry.
380.At all relevant times, Defendants had superior knowledge concerning the
addictive properties of nicotine as well as superior knowledge concerning the
levels of nicotine in Defendants' products, the effects of nicotine in Defendants'
products, and the control by Defendants of nicotine in their cigarettes. This
knowledge was intentionally concealed by Defendants, and was not available to
Plaintiffs, nor to other members of the class.
381.Defendants, therefore, were under a duty to disclose to Plaintiffs and
class members the addictive nature of nicotine and the fact that Defendants
controlled the nicotine levels in their cigarettes with the effect of creating and
sustaining the addiction of Plaintiffs and the class members.
382.Defendants have repeatedly misrepresented the truth by stating that
smoking cigarettes does not cause lung disease, heart disease, cancer and other
diseases with full knowledge that the opposite is true.
383.Defendants, as the manufacturers, promoters, marketers, advertisers,
distributors, vendors and sellers of a product intended for consumption by
consumers, were under a further duty to disclose such information to Plaintiffs
and the class members.
384.Nevertheless, at all relevant times, Defendants actively concealed,
denied, and omitted the following material information: (1) that nicotine is
addictive; (2) that Defendants control nicotine levels in their cigarettes with the
effect of creating and sustaining addiction in smokers; and (3) that smoking
cigarettes causes lung disease, heart disease, cancer and other diseases.
385.As a result of these acts of concealment, all relevant statutes of
limitation have been tolled, or in the alternative, Defendants are equitably
estopped from relying on any such statutes of limitation.
386.In addition, Defendants' wrongful conduct, as alleged herein, constitutes
a "continuous tort" which, for statute of limitations purposes, renews itself from
day to day until the tortious conduct by the Defendants ceases, or until the injury
to Plaintiffs and putative class members abates.
387.The tortious and otherwise wrongful conduct of Defendants has
continued to the present (at least to the filing of this Complaint) in their continual
concealment, denial, and affirmative misrepresentations regarding the addictive
nature of nicotine, the Defendants' control of nicotine in cigarettes, that CTR and
TI were nothing more than a tobacco industry public relations ploy and that
smoking cigarettes causes lung disease, heart disease, cancer and other
diseases.
III. CLASS ACTION ALLEGATIONS
388.Plaintiffs bring this action as a class action on behalf of themselves
individually and all other persons similarly situated, subject to the entry of an
order certifying this cause as a class action pursuant to the Illinois Code of Civil
Procedure, 735 ILCS 5/2-801 and 2-802.
A. PROPOSED CLASS
389.Plaintiff seeks certification of the following class:
All tobacco users (past and present) who reside or have resided in the
State of Illinois; (2) the estates, representatives, guardians and
administrators of all tobacco users; (3) the spouses, children,
relatives and "significant others" of all tobacco users; and (4) all
persons who have been exposed to environmental ("second-hand")
tobacco smoke and have suffered or claim to have suffered injury
(including any physical, mental or emotional injury) as a
consequence thereof.
B. CLASS ACTION LAW
390.Section 2-801 of the Illinois Code of Civil Procedure provides that a
cause of action may be maintained as a class action if:
(1) The class is so numerous that the joinder of all members is
impracticable.
(2) There are questions of fact or law common to the class, which
common questions predominate over any questions affecting only
individual members.
(3) The representative parties will fairly and adequately protect the
interest of the class.
(4) The class action is an appropriate method for the fair and efficient
adjudication of the controversy." 735 ILCS 5/2-801. C. TOBACCO CLASS
MEETS REQUIREMENTS FOR CLASS CERTIFICATION
391.The Plaintiff class satisfies the numerosity standards. Public health
information indicates that more than 3 million Illinois residents currently smoke
or use tobacco. Over 20,000 Illinois residents die each year from tobacco use.
Accordingly, the Plaintiffs are informed and believe, and on that basis allege, that
the Class includes over 3 million members. Class members may be informed of
the pendency of this class action by published and broadcast notice.
392.There are questions of fact and law common to the class which
predominate over any questions affecting only individual members. The
questions of law and fact common to the class arise from Defendants' conduct
in the research, testing, design, manufacture, promotion, advertising and
marketing of tobacco products and from the characteristics of the addictive and
injurious products themselves, predominate over any issue involving any
individual class member, and include, without limitation, the following:
A. Whether Defendants negligently exposed class members to a
hazardous substance or a defective or unreasonably dangerous
product;
B. Whether Defendants intentionally exposed class members to a
hazardous substance or a defective and unreasonably dangerous
product;
C. Whether Defendants are strictly liable for defects in the design,
manufacture, and/or marketing of tobacco products;
D. Whether Defendants acted in concert or pursuant to a common
design;
E. Whether class members are at increased risk of injury or disease
because of using Defendants' tobacco products;
F. Whether the increased risk to which class members are subject
because of their use of Defendants' products makes periodic
diagnostic and medical examinations reasonably necessary;
G. Whether monitoring and testing procedures exist that make
possible and beneficial the early detection and treatment of
diseases that Defendants' tobacco products cause;
H. What an appropriate method and procedure would be for
monitoring and testing class members for the diseases that
Defendants' tobacco products cause;
I. Whether Defendants' actions and omissions in the manufacture,
promotion, marketing, advertising, distribution, sale and exposure
of tobacco products to class members have been sufficiently
egregious to warrant the imposition of punitive damages, and if
so, in what amount;
J. Whether Defendants have been unjustly enriched by Plaintiffs'
purchases of their products;
K. Whether Defendants fraudulently and/or negligently undertook
and/or violated their pledge to research tobacco use and health;
L. Whether Defendants violated the deceptive practices/consumer
protection statutes of Illinois;
M. Whether Defendants conspired or acted in concert with respect to
the foregoing;
N. Whether nicotine is addictive;
O. Whether and when the Defendants knew that nicotine is
addictive;
P. Whether the Defendants knew or should have known that the
levels of nicotine in their tobacco products were addictive;
Q. Whether the Defendants manipulated the nicotine levels in their
tobacco products for the purpose of causing and sustaining
dependence on their products;
R. Whether the Defendants' course of conduct in denying that
nicotine is addictive and manipulating the levels of nicotine in
their tobacco products so as to addict consumers or sustain
addiction constitutes deception, intentional misrepresentation
and/or concealment of material facts;
S. Whether the Defendants' conduct constitutes forms of negligent
misrepresentations;
T. Whether the Defendants' conduct constitutes negligence;
V. Whether the Defendants violated the product liability/strict
liability law of Illinois;
W. Whether the Defendants breached expressed warranties;
X. Whether the Defendants breached any implied warranties of
merchantability;
Y. Whether the Defendants are liable for intentional infliction of
emotional distress;
Z. Whether the Defendants negligently designed their tobacco
products in terms of nicotine content;
AA. Whether the Defendants failed to adequately disclose facts
regarding the addictive nature of tobacco products through
channels of communication other than advertising and promotion;
BB. Whether the consistent presence of certain levels of nicotine in
Defendants' tobacco products and Defendants' course of conduct
in marketing them constitute a manufacturing, design, and/or
marketing defect for purposes of strict products liability;
CC. Whether Defendant manufacturers add acetaldehyde and
ammonia compounds to boost nicotine uptake;
DD. Whether Defendants manufacture tobacco products in such a way
as to cause the reporting of lower cigarette levels of nicotine than
actually present in the cigarette smoke;
EE. Whether Defendants acted to inhibit or deter investigators from
investigating and/or reporting effects of acetaldehyde and
ammonia compounds in the nicotine addiction process;
FF. Whether the Defendants are strictly liable in tort for selling a
dangerously defective product;
GG. Whether the Class members are threatened with irreparable harm
and whether they are entitled to injunctive and other equitable
relief, and, if so, the nature of such relief;
HH. Whether the Class members are entitled to medical monitoring at
the Defendants' expense;
II. Whether the Class is entitled to compensatory and punitive
damages, and, if so, the nature of such damages;
JJ. Whether Distributor Associations and/or Distributor Defendants
acted in concert with Defendant manufacturers as set forth above;
KK. Whether the Tobacco Industry has conducted medical research in
(1) the Defendants' Research and Development laboratories; (2)
through selected grants; and (3) through the Special Projects
Division of the Council for Tobacco Research -- U.S.A., that the
Defendants have suppressed and kept secret from the United
States Government, the American public and the residents of
Illinois;
LL. Whether the Special Projects Division of the Council for Tobacco
Research -- U.S.A. was fraudulently established to hide medical
research that linked tobacco and disease and established that
nicotine was addictive;
MM. Whether the tobacco industry has manipulated the levels of
nicotine in their tobacco products;
NN. Whether the tobacco industry has conducted research or has
caused research to have been conducted that affirmatively proves
the addictive nature of nicotine;
OO. Whether the tobacco industry has hidden from the public, the
United States Government and the residents of Illinois, research
that proves nicotine is addictive;
PP. Whether the tobacco industry has intentionally caused the level
of nicotine to rise in low tar cigarettes so as to keep smokers of
low tar cigarettes addicted to nicotine;
QQ. Whether the tobacco industry has intentionally caused smokers
throughout the United States and the residents of Illinois to
become addicted to tobacco products through the manipulation of
nicotine levels;
RR. Whether the Chief Executive Officers, Directors of Research and
Development and other spokespersons for the tobacco industry
have repeatedly misrepresented the truth by stating that smoking
cigarettes does not cause lung disease, heart disease, cancer and
other diseases;
SS. Whether the tobacco industry knows that tobacco causes lung
cancer, heart disease, emphysema and other diseases through its
independent research and research conducted through the Special
Projects Division of the Defendants, Council for Tobacco
Research -- U.S.A., and has intentionally concealed and/or
distorted the results of such research from the American public,
the residents of Illinois and the United States Government;
TT. Whether the tobacco industry has been aware for decades that
there are safer alternative designs for tobacco products that would
not be addictive and the tobacco industry has intentionally
disregarded such safer alternatives in order to maximize the sale
of a defective, addictive product;
UU. Whether tobacco products contain an addictive substance,
nicotine, that does in fact addict members of the consuming
public so as to constitute a defective and dangerous product;
VV. Whether the tobacco industry has conspired to defraud the United
States Government, the smoking public and the residents of
Illinois by manipulating levels of nicotine in cigarettes and
concealing any adverse testing or research that would establish
the addictive nature of nicotine and the adverse health
consequences of smoking;
WW. Whether the tobacco industry has required silence from its
scientists and researchers, so as to suppress and conceal from the
American public at large, the residents of Illinois and the United
States Government information about the addictive nature of
nicotine and the dangerous nature of the Defendants' tobacco
products;
XX. Whether Plaintiffs and members of the class could not quit
smoking because of their addiction to nicotine;
YY. Whether the Council for Tobacco Research -- U.S.A. is nothing
more than a sham -- a tobacco industry puppet that funds medical
research unrelated to issues of tobacco and health, with the
exception of the research conducted through the Special Projects
Division that is concealed from the American public, the residents
of Illinois and the United States Government;
ZZ. Whether the tobacco industry, through the Council for Tobacco
Research -- U.S.A., and specifically, the Special Projects
Division, fraudulently utilized the attorney-client privilege to
suppress medical research linking disease to cigarette smoke;
AAA. Whether the tobacco industry is the King of concealment and
disinformation -- as stated in the Opinion of New Jersey United
States Federal Court Judge H. Lee Sarokin;
BBB. Whether the Council for Tobacco Research -- U.S.A., Inc. and
Tobacco Institute, Inc. have misrepresented to the public at large
that there is still a legitimate controversy as to whether smoking
cigarettes causes any diseases, with full knowledge that the
opposite is true;
CCC. Whether the chief executive officers of the tobacco companies,
and the spokespersons for the Defendants Tobacco Institute, Inc.
and Council for Tobacco Research -- U.S.A., Inc. have
misrepresented to the public at large that (i) smoking cigarettes
does not cause lung cancer; (ii) smoking cigarettes does not cause
any cancers; (iii) smoking cigarettes does not cause heart disease;
(iv) smoking cigarettes does not cause emphysema; (v) nicotine
is not addictive; (vi) and it is not known whether any person has
ever died from smoking cigarettes;
DDD. Whether the tobacco industry, and each of these Defendants, has
targeted teenagers, women and minorities through its
merchandise advertising, including, but not limited to the "Joe
Camel" campaign, including T-shirts, mugs, back packs, cigarette
lighters, jackets, beach towels, posters, books jewelry, playing
cards, compacts, athletic equipment, duffel bags, writing utensils,
dishes, cutlery, caps, blankets, gear bags, watches, clothing,
wallets, thermoses, musical instruments, sports equipment and
numerous other attractive products -- none of which contain any
warnings as to the health hazards of smoking or addictiveness of
nicotine;
EEE. Whether the tobacco industry utilizes those portions of the
tobacco leaves that contain the most nicotine so as to maximize
the level of nicotine in and addictive properties of low tar
cigarettes;
FFF. Whether all of the Defendants have acted in concert to defraud,
misrepresent and deceive the American public;
GGG. Whether the tobacco industry is presently focusing on Third
World countries (whose inhabitants are not members of the
instant class suit) so as to create and maintain a world-wide group
of hundreds of millions of smokers who are hopelessly addicted
to nicotine, with the resulting health costs, suffering and death;
HHH. Whether nicotine is an addictive drug and cigarettes are as
addictive as heroin or cocaine;
III. Whether the spokespersons of the tobacco industry lied to
members of Congress on March 25, 1994 and April 14, 1994 in
stating under oath that tobacco containing nicotine is not
addictive and that smoking cigarettes does not cause disease and
death;
JJJ. Whether the Federal Cigarette Labeling and Advertising Act
preempts one or more of the claims Plaintiffs and members of the
class are asserting in this litigation;
KKK. Whether the tobacco industry's conduct, as set forth in Plaintiffs'
Class Action Complaint, constitutes fraud and misrepresentation;
LLL. Whether tobacco products have been defectively designed by the
tobacco industry in that one or more safer alternative designs
were and are available and have not been utilized;
MMM. Whether there has been a conspiracy to defraud the American
public, the residents of Illinois and the United States Government
by the tobacco industry;
NNN. Whether smoking cigarettes causes lung cancer, emphysema,
heart disease and other serious illnesses;
OOO. Whether over 20,000 Illinois residents die each year as a result of
smoking cigarettes and approximately 2,000 additional Illinois
residents die each year from exposure to secondary smoke;
PPP. Whether the tobacco industry should be accountable for the
damages, suffering and deaths its products has caused;
QQQ. Whether the tobacco industry is spending billions of dollars to
target smokers to switch brands through advertising on billboards,
sports events, magazines, newspapers and through merchandise
programming;
RRR. Whether the tobacco industry spends billions of dollars on
advertising to entice nonsmokers to become smokers, particularly
teenagers, women and minorities;
SSS. Whether the tobacco industry has concealed medical research
establishing that smoking cigarettes over a period of time
suppresses the immune system, making individuals more
susceptible to disease;
TTT. Whether the tobacco industry intentionally targets the most
susceptible and vulnerable persons for addiction to tobacco
products, including, but not limited to, members of our armed
forces during times of combat;
UUU. Whether the tobacco industry prior to January 1, 1965, failed to
warn the smoking public of the dangers of smoking cigarettes,
notwithstanding evidence of same, that was concealed by the
tobacco industry from the public;
VVV. Whether the tobacco industry intentionally miscalculates and
inaccurately measures the levels of tar and nicotine in tobacco
products so as to understate the same and deceive the consuming
public, the residents of Illinois and the United States Government;
WWW. Whether the tobacco industry intentionally designed a filter with
tiny, nearly invisible holes, so that less tar and nicotine would be
measured through conventional measuring mechanisms utilized
by the FDA -- far less tar and nicotine than actually is received in
the lungs of the smoker under normal usage;
XXX. Whether more nicotine is inhaled by the smoker in some low tar
cigarettes than in non-low tar cigarettes, due to the intentional
manipulation of the level of nicotine and the design of the
cigarette and filter by the tobacco industry;
YYY. Whether the tobacco industry has intentionally utilized inaccurate
measurements for tar and nicotine, knowing that often far less tar
and nicotine is measured and reported than actually gets to the
smoker;
ZZZ. Whether the tobacco industry has misrepresented the amount of
tar and nicotine on cigarette packages, knowing that the true yield
of nicotine and tar is far greater than that disclosed;
AAAA. Whether the tobacco industry has encouraged smokers to switch
to low tar cigarettes since smokers will often consume more low
tar cigarettes to obtain the nicotine they crave;
BBBB. Whether smoking costs the residents, health-care providers and
the State of Illinois approximately 2 billion dollars annually in
health care and related costs;
CCCC. Whether cigarette smoking is the single most preventable cause
of premature death and disability in Illinois;
DDDD. Whether a burning cigarette is a chemical factory that fills the air
with more than 4,000 chemicals, including carbon monoxide, a
colorless, odorless poison;
EEEE.Whether ninety-one percent of six year old children are able to
identify Joe Camel with cigarettes;
FFFF.Whether cigarettes are the major cause of lung cancer in Illinois
and are also the single greatest cause of chronic obstruction
pulmonary disease (COPD);
GGGG. Whether the tobacco industry has spent billions of dollars to hide,
cover up and obscure the true facts about smoking; and
HHHH. Whether the tobacco industry has distorted clear medical and
scientific data for their own selfish pecuniary gain and for
decades have played a statistical and semantic shell game with the
lives and health of the American public.
393.The questions set forth above predominate over any questions affecting
only individual persons, and a class action is superior with respect to
considerations of consistency, economy, efficiency, fairness and equity, to other
available methods for the fair and efficient adjudication of the controversy.
394.A class action is the appropriate method for the fair and efficient
adjudication of this controversy. The presentation of separate actions by
individual class members could create a risk of inconsistent and varying
adjudications, establish incompatible standards of conduct for Defendants,
and/or substantially impair or impede the ability of class members to protect their
interests.
395.The Plaintiffs are adequate representatives of the Class because they are
members of the Class and their interests do not conflict with the interests of the
members of the Class they seek to represent. The interests of the members of
the class will be fairly and adequately protected by the Plaintiffs and their
undersigned counsel.
IV. CLAIMS FOR RELIEF
COUNT I
STRICT LIABILITY PURSUANT TO
15402A OF THE RESTATEMENT (SECOND) OF TORTS
396.Plaintiffs, on behalf of themselves and all others similarly situated, repeat
and reallege, as if fully set forth herein, each and every allegation contained in
the above paragraphs and further allege:
397.The Defendants were engaged in the business of manufacturing,
promoting, marketing, advertising, distributing and selling certain tobacco
products which they sold and distributed in the State of Illinois to Plaintiffs and
Class members.
398.The Plaintiffs, were using said tobacco products in a manner for which
they were intended or in a reasonably foreseeable manner.
399.The Tobacco Companies' tobacco products were expected to and did
reach the Plaintiffs and Class members without substantial change in their
condition as manufactured, manipulated and sold by the Tobacco Companies.
The Distributer Defendants aided and abetted in the sale of addictive products
to the Class members.
400.The Plaintiffs and the members of the Class were not aware of, and
reasonably could not have discovered, the addictive nature of cigarettes, the
Tobacco Companies' manipulation of the nicotine levels of their cigarettes, and
the Tobacco Companies' intent to addict or maintain the addiction of the
Plaintiffs and Class members.
401.The Tobacco Companies' cigarettes, containing levels of nicotine
manipulated by the Tobacco Companies, caused or subjected the Plaintiffs and
Class members to become addicted to nicotine upon personal consumption, and
therefore constitute a product unreasonably dangerous for normal use due to
their defective design, defective manufacture, and the Tobacco Companies'
misrepresentations and inadequate facts disclosed to the Plaintiffs and the
members of the Class.
402.As a direct and proximate result of Defendants' design, manufacture,
promotion, marketing and sale of Defendants' cigarettes, Plaintiffs and class
members have suffered addiction or are subject to addiction to Defendants'
cigarettes and have suffered compensatory and punitive damages in an amount
to be proven at trial.
403.The Tobacco Companies and the Distributor Defendants, therefore, are
strictly liable to the Plaintiffs. Additionally, Defendants' conduct was so
outrageous as to constitute ill will, bad motive and reckless indifference to the
interests of the residents of Illinois. The Plaintiffs, therefore, are entitled to
punitive damages. All of the Defendants are liable to Plaintiffs and to members
of the Class jointly and severally for all general, special, and equitable relief to
which the Plaintiffs and the Class are entitled by law.
COUNT II
FRAUDULENT MISREPRESENTATION AND CONCEALMENT
404.Plaintiffs, on behalf of themselves and all others similarly situated, repeat
and reallege, as if fully set forth herein, each and every allegation contained in
the above paragraphs and further allege:
405.Defendants made false statements, intentionally committed fraud and
conspired to hide the truth regarding the safety, expected and known
complications and other material information regarding tobacco products.
406.Defendants knowingly and purposely made false and fraudulent
representations, directly or indirectly to Plaintiffs and the Class members
including but not limited to, that their tobacco products were fit for their intended
purpose, had been adequately and reliably tested when they had not, that they
were safe and that they were appropriate for use by human beings.
407.Defendants possess or possessed scientific data to demonstrate that the
tobacco products which they manufactured, promoted, marketed, advertised,
distributed and sold in Illinois were linked to serious illnesses and medical
complications.
408.Defendants intentionally and/or recklessly hid this information or
misrepresented this information to federal regulatory agencies, the residents of
Illinois and the public at large.
409.Defendants knew or were reckless in not knowing of the falsity of these
representations.
410.This information was material to Plaintiffs' decisions to use tobacco
products and Plaintiffs reasonably relied upon the representations of Defendants.
411.Defendants failed to remove and recall their tobacco products from the
market place upon learning of the unreasonable harm their products cause to
human beings.
412.The misrepresentations and failure to disclose material facts about the
tobacco products were made by Defendants with the intent to deceive Plaintiffs,
the Class members and the FDA, with the intent to induce them to use
Defendants' tobacco products, and with the intent that they be relied on by
Plaintiffs.
413.Plaintiffs, at the time these misrepresentations and omissions of material
fact were made by Defendants, and at the time Plaintiffs used said tobacco
products, were ignorant of the falsity of Defendants' misrepresentations and
relied on the representations that the tobacco products were safe as warranted
by Defendants.
414.At all times material hereto, Plaintiffs did not know and could not have
known with the exercise of reasonable care that they were exposing themselves
to serious illnesses, including those described herein, because the Defendants
fraudulently misrepresented their products.
415.In reliance on Defendants' representations, Plaintiffs were induced to and
did use Defendants' tobacco products. Had Plaintiffs known of the actual facts,
they would not have taken such actions.
416.Plaintiffs' reliance on Defendants' representations was justified because
the Defendants were in a special "fiduciary" relationship with Plaintiffs.
417.The aforesaid conduct of Defendants demonstrates willful and malicious
or intentionally fraudulent conduct, or conduct that manifests a knowing and
reckless indifference toward, and a disregard of, Plaintiffs' rights. Consequently,
punitive damages should be awarded.
COUNT III
NEGLIGENT MISREPRESENTATION AND CONCEALMENT
418.Plaintiffs, on behalf of themselves and all others similarly situated, repeat
and reallege, as if fully set forth herein, each and every allegation contained in
the above paragraphs and further allege:
419.Defendants, in continuing to sell and distribute tobacco products for use
by Plaintiffs, while failing to warn Plaintiffs of the dangers of using tobacco
products after Defendants learned or should have learned of these dangers,
negligently misrepresented that their tobacco products were fit for use,
merchantable and reasonably safe for their intended purpose.
420.The representations and omissions of material fact by Defendants were
in fact false. The true facts which Defendants failed to disclosed and/or falsified
to the public, the residents of Illinois and the FDA were that tobacco products
could cause severe medical problems to Plaintiffs and the Class members.
421.When Defendants made these representations and omissions of material
fact, they knew or should have known that the representations were false, that
the omissions of material fact were misleading, and that the misrepresentations
were made with no reasonable ground for believing them to be true.
422.The representations and omissions of material fact were made by
Defendants with intent to deceive Plaintiffs, the Class members and the FDA,
with intent to induce them to use Defendants' tobacco products.
423.At the time the aforesaid representations and omissions of material fact
were made, Defendants concealed from Plaintiffs, the Class members and the
FDA their lack of adequate testing and research and their lack of information
about the safety of the tobacco products.
424. Plaintiffs, at the time these representations and omissions of material
fact were made by Defendants and at the time Plaintiffs used the tobacco
products, were ignorant of the falsity of Defendants' representations and believed
that tobacco products were safe as warranted by Defendants.
425.Plaintiffs reasonably relied upon such misrepresentations, either directly
or secondarily, and were induced to and did use tobacco products. Had
Plaintiffs known of the actual facts, which Defendants had failed to disclose, they
would not have used tobacco products.
426.As a direct and proximate result of one or more of the foregoing unsafe
and defective conditions of said products, the Plaintiffs sustained severe and
permanent injuries and illnesses, both externally and internally, and were and will
be hindered and prevented from attending to their usual duties, obligations and
employment, have lost and will in the future lose the value of that time, have
suffered great pain and anguish, both in mind and body, and will in the future
continue to suffer, and have expended and became liable for, and will expend
and become liable for, large sums of money for medical care and services
endeavoring to become healed and cured of their injuries.
COUNT IV
FRAUDULENT MISREPRESENTATION AND CONCEALMENT
PURSUANT TO THE CONSUMER FRAUD AND DECEPTIVE
BUSINESS PRACTICES ACT 815 ILCS 505, ET SEQ.
427.Plaintiffs, on behalf of themselves and all others similarly situated, repeat
and reallege, as if fully set forth herein, each and every allegation contained in
the above paragraphs and further allege:
428.The Illinois Consumer Fraud and Deceptive Business Practices Act, 815
ILCS 505, et seq., provides in relevant part as follows:
Unfair methods of competition and unfair or deceptive acts or practices,
including but not limited to the use or employment of any deception,
fraud, false pretense, false promise, misrepresentation or the concealment,
suppression or omission of any material fact, with intent that others rely
upon the concealment, suppression or omission of such material fact, or
the use or employment of any practice described in Section 2 of the
"Uniform Deceptive Trade Practices Act", approved August 5, 1965, in
the conduct of any trade or commerce are hereby declared unlawful
whether any person has in fact been misled, deceived or damaged
thereby. In construing this section consideration shall be given to the
interpretations of the Federal Trade Commission and the federal courts
relating to Section 5(a) of the Federal Trade Commission Act.
429.Defendants' actions result in fraudulent misrepresentation and
concealment pursuant to The Consumer Fraud And Deceptive Business Practices
Act, 815 ILCS 505, et seq.
430.As a direct and proximate result of one or more of the foregoing unsafe
and defective conditions of said products, the Plaintiffs sustained severe and
permanent injuries and illnesses, both externally and internally, and were and will
be hindered and prevented from attending to their usual duties, obligations and
employment, have lost and will in the future lose the value of that time, have
suffered great pain and anguish, both in mind and body, and will in the future
continue to suffer, and have expended and became liable for, and will expend
and become liable for, large sums of money for medical care and services
endeavoring to become healed and cured of their injuries.
COUNT V
NEGLIGENT MISREPRESENTATION AND CONCEALMENT
PURSUANT TO THE CONSUMER FRAUD AND DECEPTIVE
BUSINESS PRACTICES ACT 815 ILCS 505, ET SEQ.
431.Plaintiffs, on behalf of themselves and all others similarly situated, repeat
and reallege, as if fully set forth herein, each and every allegation contained in
the above paragraphs and further allege:
432.The Illinois Consumer Fraud and Deceptive Business Practices Act, 815
ILCS 505, et seq., provides in relevant part as follows:
Unfair methods of competition and unfair or deceptive acts or practices,
including but not limited to the use or employment of any deception,
fraud, false pretense, false promise, misrepresentation or the concealment,
suppression or omission of any material fact, with intent that others rely
upon the concealment, suppression or omission of such material fact, or
the use or employment of any practice described in Section 2 of the
"Uniform Deceptive Trade Practices Act", approved August 5, 1965, in
the conduct of any trade or commerce are hereby declared unlawful
whether any person has in fact been misled, deceived or damaged
thereby. In construing this section consideration shall be given to the
interpretations of the Federal Trade Commission and the federal courts
relating to Section 5(a) of the Federal Trade Commission Act.
433.Defendants' actions result in negligent misrepresentation and
concealment pursuant to The Consumer Fraud And Deceptive Business Practices
Act, 815 ILCS 505, et seq.
434.As a direct and proximate result of one or more of the foregoing unsafe
and defective conditions of said products, the Plaintiffs sustained severe and
permanent injuries and illnesses, both externally and internally, and were and will
be hindered and prevented from attending to their usual duties, obligations and
employment, have lost and will in the future lose the value of that time, have
suffered great pain and anguish, both in mind and body, and will in the future
continue to suffer, and have expended and became liable for, and will expend
and become liable for, large sums of money for medical care and services
endeavoring to become healed and cured of their injuries.
COUNT VI
CONSPIRACY
435.Plaintiffs, on behalf of themselves and all others similarly situated, repeat
and reallege, as if fully set forth herein, each and every allegation contained in
the above paragraphs and further allege:
436.The Defendants conspired together and formed the deliberate design and
purpose to prevent public awareness and hide the truth regarding the safety,
expected and known serious health impairments caused by using tobacco
products and other material information regarding tobacco products.
437.Pursuant to said conspiracy and in furtherance of said design and
purpose, Defendants maliciously, unlawfully and wrongfully committed the
following overt acts, to wit:
a. Defendants made false statements, intentionally committed fraud and
conspired to hide the truth regarding the safety, expected and known
health impairments caused by using tobacco products and other material
information regarding tobacco products.
b. Defendants knowingly and purposely made false and fraudulent
representations, directly or indirectly to Plaintiffs including but not
limited to, that their tobacco products were fit for their intended purpose,
had been adequately and reliably tested when they had not, that they were
safe, and that they were appropriate for use by human beings.
c. Defendants possess or possessed scientific data to demonstrate that the
tobacco products which they manufactured, promoted, marketed,
advertised, distributed and sold in Illinois were linked to serious illnesses
and medical complications including those complained of by Plaintiffs.
Defendants intentionally and/or recklessly hid this information or
misrepresented this information to federal regulatory agencies, Plaintiffs,
the Class members and the public at large.
d. The misrepresentations and failure to disclose material facts about the
tobacco products were made by Defendants with the intent to deceive
Plaintiffs, the Class members and the FDA, with the intent to induce them
to use Defendants' tobacco products, and with the intent that they be
relied on by Plaintiffs.
e. Defendants failed to remove and recall their products from the market
place upon learning of the unreasonable harm to human beings such as
Plaintiffs.
438.The aforesaid conduct of Defendants demonstrates willful and malicious
or intentionally fraudulent conduct, or conduct that manifests a knowing and
reckless indifference toward, and a disregard of, Plaintiffs' rights. Consequently,
punitive damages should be awarded.
439.At all times material hereto, Plaintiffs did not know and could not have
known with the exercise of reasonable care that they were exposing themselves
to developing serious illnesses, including those described herein, because the
Defendants conspired together and formed the deliberate design and purpose to
prevent public awareness and hide the truth regarding the safety, expected and
known health impairments caused by using tobacco products and other material
information regarding the aforesaid tobacco products.
440.As a direct and proximate result of one or more of the foregoing unsafe
and defective conditions of said products, the Plaintiffs sustained severe and
permanent injuries and illnesses, both externally and internally, and were and will
be hindered and prevented from attending to their usual duties, obligations and
employment, have lost and will in the future lose the value of that time, have
suffered great pain and anguish, both in mind and body, and will in the future
continue to suffer, and have expended and became liable for, and will expend
and become liable for, large sums of money for medical care and services
endeavoring to become healed and cured of their injuries.
COUNT VII
NEGLIGENCE
441.Plaintiffs, on behalf of themselves and all others similarly situated, repeat
and reallege, as if fully set forth herein, each and every allegation contained in
the above paragraphs and further allege:
442.It was the duty of the Defendants to use reasonable care in the
manufacture, promotion, marketing, advertising, distribution and sale of tobacco
products.
443.Contrary to their duty, the Defendants were guilty of one or more of the
following careless and negligent acts and/or omissions:
a. Failed to adequately and properly test and inspect said tobacco products
so as to ascertain whether or not they were safe and proper for the
purpose for which they were designed, manufactured and sold;
b. Failed to utilize and/or implement a reasonably safe design in the
manufacture of said tobacco products;
c. Failed to manufacture said tobacco products in a reasonably safe
condition for which they were intended;
d. Failed to adequately and properly warn Plaintiffs and Class members
purchasing said tobacco products of the risks of addiction when used in
a manner for which they were intended;
e. Failed to adequately and properly warn Plaintiffs and Class members
purchasing said tobacco products of the risks of diseases when used in a
manner for which they were intended;
f. Failed to adequately and properly label said tobacco products so as to
warn the Plaintiffs and Class members of the risks of addiction;
g. Failed to adequately and properly label said tobacco products so as to
warn the Plaintiffs and Class members of the risks of tobacco-related
diseases;
h. Manufactured tobacco products which constituted a hazard to health;
i. Manufactured tobacco products which caused adverse side effects;
j. Were otherwise careless and negligent.
444.As a direct and proximate result of one or more of the foregoing unsafe
and defective conditions of said products, the Plaintiffs sustained severe and
permanent injuries and illnesses, both externally and internally, and were and will
be hindered and prevented from attending to their usual duties, obligations and
employment, have lost and will in the future lose the value of that time, have
suffered great pain and anguish, both in mind and body, and will in the future
continue to suffer, and have expended and became liable for, and will expend
and become liable for, large sums of money for medical care and services
endeavoring to become healed and cured of their injuries.
COUNT VIII
UNJUST ENRICHMENT
445.Plaintiffs, on behalf of themselves and all others similarly situated, repeat
and reallege, as if fully set forth herein, each and every allegation contained in
the above paragraphs and further allege:
446.By reason of regular expenditures for the purchase of tobacco products
from Defendants, Plaintiffs and Class members have conferred substantial
benefits on Defendants.
447.Defendants have accepted, retained and been enriched by these benefits
under such circumstances that it would be unjust for them to retain the benefits
without the payment of value.
COUNT IX
BREACH OF EXPRESS WARRANTY
448.Plaintiffs, on behalf of themselves and all others similarly situated, repeat
and reallege, as if fully set forth herein, each and every allegation contained in
the above paragraphs and further allege:
449.Defendants expressly warranted to Plaintiffs that the tobacco products,
which they manufactured, promoted, marketed, advertised, distributed and sold
to Plaintiffs, were of merchantable quality, fit and safe for human use and
otherwise not injurious to Plaintiffs' health and well-being.
450.Plaintiffs, relying upon Defendants' guarantees and express warranties,
purchased and used said tobacco products.
451.The tobacco products used by Plaintiffs were unsafe, unmerchantable,
unfit for human use, and were otherwise injurious to Plaintiffs, notwithstanding
Defendants' guarantees and express warranties.
452.The Defendants breached their express warranties in that said products
were not of merchantable quality, fit and safe for human use and otherwise not
injurious to Plaintiffs' health and well-being.
453.As a direct and proximate result of one or more of the foregoing unsafe
and defective conditions of said products, the Plaintiffs sustained severe and
permanent injuries and illnesses, both externally and internally, and were and will
be hindered and prevented from attending to their usual duties, obligations and
employment, have lost and will in the future lose the value of that time, have
suffered great pain and anguish, both in mind and body, and will in the future
continue to suffer, and have expended and became liable for, and will expend
and become liable for, large sums of money for medical care and services
endeavoring to become healed and cured of their injuries.
COUNT X
BREACH OF EXPRESS WARRANTY
PURSUANT TO 810 ILCS 5/2-313
454.Plaintiffs, on behalf of themselves and all others similarly situated, repeat
and reallege, as if fully set forth herein, each and every allegation contained in
the above paragraphs and further allege:
455.Illinois Statute, 810 ILCS 5/2-313 provides in relevant part:
(1) Express warranties by the seller are created as follows:
(a) Any affirmation of fact or promise made by the seller to the buyer
which relates to the goods and becomes part of the basis of the
bargain creates an express warranty that the goods shall conform
to the affirmation or promise.
(b) Any description of the goods which is made part of the basis of
the bargain creates an express warranty that the goods shall
conform to the description.
(c) Any sample or model which is made part of the basis of the
bargain creates an express warranty that the whole of the goods
shall conform to the sample or model.
(2) It is not necessary to the creation of an express warranty that the seller
use formal words such as "warrant" or "guarantee" or that he have a
specific intention to make a warranty . . .
456.The Defendants gave an express warranty pursuant to 810 ILCS 5/2-313.
457.Defendants expressly warranted to Plaintiffs that the tobacco products
which they manufactured, promoted, marketed, advertised, distributed and sold
to Plaintiffs were of merchantable quality, fit and safe for human use and
otherwise not injurious to Plaintiffs' health and well-being.
458.Plaintiffs, relying upon Defendants' guarantees and express warranties,
purchased said tobacco products.
459.The tobacco products used by Plaintiffs were unsafe, unmerchantable,
unfit for human use, and were otherwise injurious to Plaintiffs.
460.The Defendants breached their express warranties in that said tobacco
products were not of merchantable quality, fit and safe for human use and
otherwise not injurious to Plaintiffs' health and well-being.
461.As a direct and proximate result of one or more of the foregoing unsafe
and defective conditions of said products, the Plaintiffs sustained severe and
permanent injuries and illnesses, both externally and internally, and were and will
be hindered and prevented from attending to their usual duties, obligations and
employment, have lost and will in the future lose the value of that time, have
suffered great pain and anguish, both in mind and body, and will in the future
continue to suffer, and have expended and became liable for, and will expend
and become liable for, large sums of money for medical care and services
endeavoring to become healed and cured of their injuries.
COUNT XI
BREACH OF WARRANTY OF MERCHANTABILITY
462.Plaintiffs, on behalf of themselves and all others similarly situated, repeat
and reallege, as if fully set forth herein, each and every allegation contained in
the above paragraphs and further allege:
463.The Defendants gave an implied warranty that said tobacco products
were merchantable.
464.The Defendants breached their implied warranty of merchantability in that
said tobacco products were not fit for the ordinary purpose for which said
tobacco products were used, were not adequately labeled, and were dangerous
and a hazard to health.
465.As a direct and proximate result of one or more of the foregoing unsafe
and defective conditions of said products, the Plaintiffs sustained severe and
permanent injuries and illnesses, both externally and internally, and were and will
be hindered and prevented from attending to their usual duties, obligations and
employment, have lost and will in the future lose the value of that time, have
suffered great pain and anguish, both in mind and body, and will in the future
continue to suffer, and have expended and became liable for, and will expend
and become liable for, large sums of money for medical care and services
endeavoring to become healed and cured of their injuries.
COUNT XII
BREACH OF WARRANTY OF MERCHANTABILITY
PURSUANT TO 810 ILCS 5/2-314
466.Plaintiffs, on behalf of themselves and all others similarly situated, repeat
and reallege, as if fully set forth herein, each and every allegation contained in
the above paragraphs and further allege:
467.Illinois Statute, 810 ILCS 5/2-314 provides in relevant part:
Unless excluded or modified . . . a warranty that the goods shall be merchantable
is implied in a contract for their sale if the seller is a merchant with respect to
goods of that kind . . . Goods to be merchantable must be at least such as . . .
are
fit for the ordinary purposes for which such goods are used.
468.The Defendants gave an implied warranty pursuant to 810 ILCS 5/2-314,
that said tobacco products were merchantable.
469.The Defendants breached their implied warranty of merchantability in that
said tobacco products were not fit for the ordinary purpose for which said
tobacco products were used, were not adequately labeled, and were dangerous
and a hazard to health.
470.As a direct and proximate result of one or more of the foregoing unsafe
and defective conditions of said products, the Plaintiffs sustained severe and
permanent injuries and illnesses, both externally and internally, and were and will
be hindered and prevented from attending to their usual duties, obligations and
employment, have lost and will in the future lose the value of that time, have
suffered great pain and anguish, both in mind and body, and will in the future
continue to suffer, and have expended and became liable for, and will expend
and become liable for, large sums of money for medical care and services
endeavoring to become healed and cured of their injuries.
COUNT XIII
BREACH OF WARRANTY OF FITNESS
FOR A PARTICULAR PURPOSE
471.Plaintiffs, on behalf of themselves and all others similarly situated, repeat
and reallege, as if fully set forth herein, each and every allegation contained in
the above paragraphs and further allege:
472.The Defendants had reason to know the particular purpose for which
said products were required and that Plaintiffs were relying on the Defendants'
skill and judgment to select or furnish suitable tobacco products.
473.The Defendants breached their implied warranty of fitness for a particular
purpose in that said tobacco products were addictive, dangerous and a hazard
to health.
474.As a direct and proximate result of one or more of the foregoing unsafe
and defective conditions of said products, the Plaintiffs sustained severe and
permanent injuries and illnesses, both externally and internally, and were and will
be hindered and prevented from attending to their usual duties, obligations and
employment, have lost and will in the future lose the value of that time, have
suffered great pain and anguish, both in mind and body, and will in the future
continue to suffer, and have expended and became liable for, and will expend
and become liable for, large sums of money for medical care and services
endeavoring to become healed and cured of their injuries.
COUNT XIV
BREACH OF WARRANTY OF FITNESS FOR A PARTICULAR
PURPOSE PURSUANT TO 810 ILCS 5/2-315
475.Plaintiffs, on behalf of themselves and all others similarly situated, repeat
and reallege, as if fully set forth herein, each and every allegation contained in
the above paragraphs and further allege:
476.Illinois Statute, 810 ILCS 5/2-315 provides in relevant part:
Where the seller at the time of contracting has reason to know any
particular purpose for which the goods are required and that the buyer is
relying on the seller's skill or judgment to select or furnish suitable
goods, there is unless excluded or modified under the next section an
implied warranty that the goods shall be fit for such purpose.
477.The Defendants had reason to know the particular purpose for which
said tobacco products were to be used and that Plaintiffs were relying on the
Defendants' skill and judgment to select or furnish suitable products.
478.The Defendants gave an implied warranty pursuant to 810 ILCS 5/2-315,
that said tobacco products were fit for the purpose for which they were required.
479.The Defendants breached their implied warranty of fitness for a particular
purpose in that said tobacco products were addictive, dangerous and a hazard
to health.
480.As a direct and proximate result of one or more of the foregoing unsafe
and defective conditions of said products, the Plaintiffs sustained severe and
permanent injuries and illnesses, both externally and internally, and were and will
be hindered and prevented from attending to their usual duties, obligations and
employment, have lost and will in the future lose the value of that time, have
suffered great pain and anguish, both in mind and body, and will in the future
continue to suffer, and have expended and became liable for, and will expend
and become liable for, large sums of money for medical care and services
endeavoring to become healed and cured of their injuries.
COUNT XV
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
481.Plaintiffs, on behalf of themselves and all others similarly situated, repeat
and reallege, as if fully set forth herein, each and every allegation contained in
the above paragraphs and further allege:
482.Defendants made false statements, intentionally committed fraud and
conspired to hide the truth regarding the safety, expected and known health
impairments caused by using tobacco products and other material information
regarding the aforesaid tobacco products.
483.Defendants knowingly and purposely made false and fraudulent
representations, directly or indirectly to Plaintiffs including but not limited to, that
their tobacco products were fit for their intended purpose, had been adequately
and reliably tested when they had not, that they were safe, and that they were
appropriate for use by human beings.
484.Defendants possess or possessed scientific data to demonstrate that the
tobacco products, which they manufactured, promoted, marketed, advertised,
distributed and sold in Illinois were linked to serious illnesses and complications
including those complained of by Plaintiffs.
485.Several Plaintiffs became pregnant while using tobacco products. The
Defendants had knowledge that using tobacco products would detrimentally
affect developing fetuses. Those Plaintiffs who became pregnant while using
tobacco products are extremely fearful and apprehensive that a miscarriage
resulted because of an adverse reaction to the aforementioned tobacco products.
486.Defendants intentionally and/or recklessly hid this information or
misrepresented this information to federal regulatory agencies, Plaintiffs, the
Class members and the public at large.
487.Defendants knew or were reckless in not knowing of the falsity of these
representations.
488.This information was material to Plaintiffs' decisions to use tobacco
products and Plaintiffs reasonably relied upon the representations of Defendants.
489.Defendants failed to remove and recall their tobacco products from the
market place upon learning of the unreasonable harm to Plaintiffs who used
tobacco products while pregnant.
490.The misrepresentations and failure to disclose material facts about
tobacco products were made by Defendants with the intent to deceive Plaintiffs,
the Class members and the FDA, with the intent to induce them to select
Defendants' tobacco products, and with the intent that material facts be relied on
by Plaintiffs.
491.Plaintiffs, at the time these misrepresentations and omissions of material
fact were made by Defendants, and at the time Plaintiffs used tobacco products,
were ignorant of the falsity of Defendants' misrepresentations and relied on the
representations that tobacco products were safe as warranted by Defendants.
492.At all times material hereto, Plaintiffs did not know and could not have
known with the exercise of reasonable care that they were exposing themselves
to serious illnesses, including those described herein, because the Defendants
fraudulently misrepresented their products.
493.In reliance on Defendants' representations, Plaintiffs were induced to and
did use tobacco products. Had Plaintiffs known of the actual facts, they would
not have taken such actions.
494.Plaintiffs' reliance on Defendants' representations was justified because
the Defendants were in a special "fiduciary" relationship with Plaintiffs.
495.Defendants placed into the stream of commerce defective tobacco
products knowing that said tobacco products were not fit for their intended
purposes.
496.Defendants also knew that Plaintiffs would suffer emotional distress
upon learning that the said tobacco products were addictive and could sustain
medical problems as described herein.
497.Defendants' conduct in manufacturing, promoting, marketing,
advertising, distributing, selling and placing on the market and into the stream
of commerce a known defective product constitutes the intentional infliction of
emotional distress upon Plaintiffs and directly and proximately caused emotional
distress in Plaintiffs.
498.The aforesaid conduct of Defendants demonstrates willful and malicious
or intentionally fraudulent conduct, or conduct that manifests a knowing and
reckless indifference toward, and a disregard of, Plaintiffs' rights. Consequently,
punitive damages should be awarded.
499.The Defendants intended that their aforementioned conduct would inflict
severe emotional distress or knew that there was at least a high probability that
their conduct would cause severe emotional distress.
500.The conduct of the Defendants did, in fact, cause severe emotional
distress to all Plaintiffs.
501.As a direct and proximate result of one or more of the foregoing unsafe
and defective conditions of said products, the Plaintiffs sustained severe and
permanent injuries and illnesses, both externally and internally, and were and will
be hindered and prevented from attending to their usual duties, obligations and
employment, have lost and will in the future lose the value of that time, have
suffered great pain and anguish, both in mind and body, and will in the future
continue to suffer, and have expended and became liable for, and will expend
and become liable for, large sums of money for medical care and services
endeavoring to become healed and cured of their injuries.
COUNT XVI
NEGLIGENT UNDERTAKING
502.Plaintiffs, on behalf of themselves and all others similarly situated, repeat
and reallege, as if fully set forth herein, each and every allegation contained in
the above paragraphs and further allege:
503.This Count is brought pursuant to Section 324 A of Restatement
(Second) Torts. Defendants have affirmatively, voluntarily and publicly
undertaken to conduct, report and implement research to protect public health
in connection with tobacco products. Defendants have failed to exercise
reasonable care in connection with this undertaking.
504.In reliance upon Defendants' undertaking to disclose complete and
accurate information about the effects of the use of tobacco products on human
health and the addictive nature of nicotine, Plaintiffs and Class members began
or continued to use Defendants' tobacco products. Defendants' breach of their
undertaking has caused, and continues to cause, large numbers of Plaintiffs and
Class members to unwittingly develop an addiction to these products, as a direct
result of which many suffer serious and often fatal health problems.
505.As a direct and proximate result of one or more of the foregoing unsafe
and defective conditions of said products, the Plaintiffs sustained severe and
permanent injuries and illnesses, both externally and internally, and were and will
be hindered and prevented from attending to their usual duties, obligations and
employment, have lost and will in the future lose the value of that time, have
suffered great pain and anguish, both in mind and body, and will in the future
continue to suffer, and have expended and became liable for, and will expend
and become liable for, large sums of money for medical care and services
endeavoring to become healed and cured of their injuries.
COUNT XVII
FALSE ADVERTISING
506.Plaintiffs, on behalf of themselves and all others similarly situated, repeat
and reallege, as if fully set forth herein, each and every allegation contained in
the above paragraphs and further allege:
507.Defendants made false advertisements, regarding the safety, expected
and known serious health hazards and other material information regarding the
aforesaid tobacco products.
508.Defendants knowingly and purposely made false advertisements, directly
or indirectly to Plaintiffs and Class members including but not limited to, that
their tobacco products were fit for their intended purpose, had been adequately
and reliably tested when they had not, that they were safe, and that they were
appropriate for use by human beings.
509.Defendants possess or possessed scientific data to demonstrate that the
tobacco products, which they manufactured, promoted, marketed, advertised,
distributed and sold in Illinois, were linked to serious illnesses and health
impairments including those complained of by Plaintiffs.
510.Defendants intentionally and/or recklessly made false advertisements to
federal regulatory agencies, Plaintiffs, the Class members and the public at large.
511.Defendants knew or were reckless in not knowing of the falsity of these
advertisements.
512.This information was material to Plaintiffs' decisions to use tobacco
products and Plaintiffs reasonably relied upon the advertisements of Defendants.
513.Defendants failed to remove and recall their false advertisements upon
learning of the unreasonable harm to human beings such as Plaintiffs who used
tobacco products.
514.The false advertisements regarding material facts about the tobacco
products, were made by Defendants with the intent to deceive Plaintiffs, the
Class members and the FDA, with the intent to induce them to use Defendants'
tobacco products, and with the intent that the material facts be relied on by
Plaintiffs.
515.Plaintiffs, at the time these false advertisements were made by
Defendants, and at the time Plaintiffs used tobacco products, were ignorant of
the falsity of Defendants' advertisements and relied on the advertisements that
the tobacco products were safe as warranted by Defendants.
516.At all times material hereto, Plaintiffs did not know and could not have
known with the exercise of reasonable care that they were exposing themselves
to serious illnesses, including those described herein, because the Defendants
made false advertisements regarding their tobacco products.
517.In reliance on Defendants' false advertisements, Plaintiffs were induced
to and did use tobacco products. Had Plaintiffs known of the actual facts, they
would not have taken such actions.
518.Plaintiffs' reliance on Defendants' false advertisements were justified
because the Defendants were in a special "fiduciary" relationship with Plaintiffs.
519.The aforesaid conduct of Defendants demonstrates willful and malicious
or intentionally fraudulent conduct, or conduct that manifests a knowing and
reckless indifference toward, and a disregard of, Plaintiffs' rights. Consequently,
punitive damages should be awarded.
520.As a direct and proximate result of one or more of the foregoing unsafe
and defective conditions of said products, the Plaintiffs sustained severe and
permanent injuries and illnesses, both externally and internally, and were and will
be hindered and prevented from attending to their usual duties, obligations and
employment, have lost and will in the future lose the value of that time, have
suffered great pain and anguish, both in mind and body, and will in the future
continue to suffer, and have expended and became liable for, and will expend
and become liable for, large sums of money for medical care and services
endeavoring to become healed and cured of their injuries.
COUNT XVIII
FALSE ADVERTISING PURSUANT TO
THE CONSUMER FRAUD AND DECEPTIVE BUSINESS
PRACTICES ACT 815 ILCS 505, ET SEQ.
521.Plaintiffs, on behalf of themselves and all others similarly situated, repeat
and reallege, as if fully set forth herein, each and every allegation contained in
the above paragraphs and further allege:
522.Illinois Consumer Fraud and Deceptive Business Practices Act, 815 ILCS
505, et seq., provides in relevant part as follows:
Unfair methods of competition and unfair or deceptive acts or practices,
including but not limited to the use or employment of any deception,
fraud, false pretense, false promise, misrepresentation or the concealment,
suppression or omission of any material fact, with intent that others rely
upon the concealment, suppression or omission of such material fact, or
the use or employment of any practice described in Section 2 of the
"Uniform Deceptive Trade Practices Act", approved August 5, 1965, in
the conduct of any trade or commerce are hereby declared unlawful
whether any person has in fact been misled, deceived or damaged
thereby. In construing this section consideration shall be given to the
interpretations of the Federal Trade Commission and the federal courts
relating to Section 5(a) of the Federal Trade Commission Act.
523.Defendants' actions result in false advertising pursuant to The Consumer
Fraud And Deceptive Business Practices Act, 815 ILCS 505, et seq.
524.As a direct and proximate result of one or more of the foregoing unsafe
and defective conditions of said products, the Plaintiffs sustained severe and
permanent injuries and illnesses, both externally and internally, and were and will
be hindered and prevented from attending to their usual duties, obligations and
employment, have lost and will in the future lose the value of that time, have
suffered great pain and anguish, both in mind and body, and will in the future
continue to suffer, and have expended and became liable for, and will expend
and become liable for, large sums of money for medical care and services
endeavoring to become healed and cured of their injuries.
COUNT XIX
NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS
525.Plaintiffs, on behalf of themselves and all others similarly situated, repeat
and reallege, as if fully set forth herein, each and every allegation contained in
the above paragraphs and further allege:
526.Defendants made false statements, intentionally committed fraud and
conspired to hide the truth regarding the safety, expected and known serious
health hazards and other material information regarding the aforesaid tobacco
products
527.Defendants knowingly and purposely made false and fraudulent
representations, directly or indirectly to Plaintiffs including but not limited to, that
their tobacco products were fit for their intended purpose, had been adequately
and reliably tested when they had not, that they were safe, and that they were
appropriate for use by human beings.
528.Defendants possess or possessed scientific data to demonstrate that
tobacco products, which they manufactured, promoted, marketed, advertised,
distributed and sold in Illinois, were linked to serious illnesses and medical
complications including those complained of by Plaintiffs.
529.Several Plaintiffs became pregnant while using tobacco products. The
Defendants had knowledge that using tobacco products would seriously affect
developing fetuses. Those Plaintiffs who became pregnant while using tobacco
products are extremely fearful and apprehensive that a miscarriage resulted
because of an adverse reaction to the aforementioned tobacco products.
530.Defendants intentionally and/or recklessly hid this information or
misrepresented this information to federal regulatory agencies, Plaintiffs, the
Class members and the public at large.
531.Defendants knew or were reckless in not knowing of the falsity of these
representations.
532.This information was material to Plaintiffs' decisions to use tobacco
products and Plaintiffs reasonably relied upon the representations of Defendants.
533.Defendants failed to remove and recall their tobacco products from the
market place upon learning of the unreasonable harm to Plaintiffs who used
tobacco products while pregnant.
534.The misrepresentations and failure to disclose material facts about
tobacco products were made by Defendants with the intent to deceive Plaintiffs,
the Class members and the FDA, with the intent to induce them to select
Defendants' tobacco products, and with the intent that they be relied on by
Plaintiffs.
535.Plaintiffs, at the time these misrepresentations and omissions of material
fact were made by Defendants, and at the time Plaintiffs used tobacco products,
were ignorant of the falsity of Defendants' misrepresentations and relied on the
representations that the tobacco products were safe as warranted by Defendants.
536.At all times material hereto, Plaintiffs did not know and could not have
known with the exercise of reasonable care that they were exposing themselves
to serious illnesses, including those described herein, because the Defendants
fraudulently misrepresented their products.
537.In reliance on Defendants' representations, Plaintiffs were induced to and
did use tobacco products. Had Plaintiffs known of the actual facts, they would
not have taken such actions.
538.Plaintiffs' reliance on Defendants' representations was justified because
the Defendants were in a special "fiduciary" relationship with Plaintiffs.
539.Defendants placed into the stream of commerce defective tobacco
products knowing that said tobacco products were not fit for their intended
purposes.
540.Defendants were careless, negligent and reckless regarding the
likelihood that Plaintiffs would suffer emotional distress upon learning that the
said tobacco products were addictive and could cause the attendant medical
problems as described herein.
541.Defendants' conduct in manufacturing, promoting, marketing,
advertising, distributing, selling and placing on the market and into the stream
of commerce a known defective product constitutes careless, negligent and
reckless infliction of emotional distress upon Plaintiffs and directly and
proximately caused emotional distress in Plaintiffs.
542.The aforesaid conduct of Defendants demonstrates careless, negligent
and reckless conduct, or conduct that manifests a knowing and reckless
indifference toward, and a disregard of, Plaintiffs' rights. Consequently, punitive
damages should be awarded.
543.The Defendants were careless, negligent and reckless in that their
aforementioned conduct would inflict severe emotional distress or knew that
there was at least a high probability that their conduct would cause severe
emotional distress.
544.The conduct of the Defendants did, in fact, cause severe emotional
distress to all Plaintiffs.
545.As a direct and proximate result of one or more of the foregoing unsafe
and defective conditions of said products, the Plaintiffs sustained severe and
permanent injuries and illnesses, both externally and internally, and were and will
be hindered and prevented from attending to their usual duties, obligations and
employment, have lost and will in the future lose the value of that time, have
suffered great pain and anguish, both in mind and body, and will in the future
continue to suffer, and have expended and became liable for, and will expend
and become liable for, large sums of money for medical care and services
endeavoring to become healed and cured of their injuries.
COUNT XX
WILFUL AND WANTON MISCONDUCT
546.Plaintiffs, on behalf of themselves and all others similarly situated, repeat
and reallege, as if fully set forth herein, each and every allegation contained in
the above paragraphs and further allege:
547.It was the duty of Defendants to refrain from wilful and wanton
misconduct which endangered the safety and health of Plaintiffs.
548.Notwithstanding the Defendants' duty to refrain from wilful and wanton
misconduct, Defendants acted with an utter indifference and conscious disregard
for the safety and health of Plaintiffs, in one or more of the following ways:
a. Wilfully and wantonly made false statements, intentionally committed
fraud and conspired to hide the truth regarding the safety, expected and
known health impairments caused by using tobacco products and other
material information regarding tobacco products.
b. Wilfully and wantonly made false and fraudulent representations, directly
or indirectly to Plaintiffs including but not limited to, that their tobacco
products were fit for their intended purpose, had been adequately and
reliably tested when they had not, that they were safe, and that they were
appropriate for use by human beings.
c. Defendants possess or possessed scientific data to demonstrate that the
tobacco products which they manufactured, promoted, marketed,
advertised, distributed and sold in Illinois were linked to serious illnesses
and medical complications including those complained of by Plaintiffs
and wilfully and wantonly hid this information or misrepresented this
information to federal regulatory agencies, Plaintiffs, the Class members
and the public at large.
d. The misrepresentations and failure to disclose material facts about the
tobacco products were wilfully and wantonly made by Defendants with
the intent to deceive Plaintiffs, the Class members and the FDA, with the
intent to induce them to select Defendants' tobacco products, and with
the intent that they be relied on by Plaintiffs.
e. Wilfully and wantonly failed to remove and recall their tobacco products
from the market place upon learning of the unreasonable harm to human
beings such as Plaintiffs who used tobacco products.
549.This information was material to Plaintiffs' decisions to use Defendants'
tobacco products and Plaintiffs reasonably relied upon the representations of
Defendants.
550.The aforesaid conduct of Defendants demonstrates wilful, wanton,
malicious and intentionally fraudulent conduct, or conduct that manifests a
knowing and reckless indifference toward, and a disregard of, Plaintiffs' rights.
Consequently, punitive damages should be awarded.
551.At all times material hereto, Plaintiffs did not know and could not have
known with the exercise of reasonable care that they were exposing themselves
to serious illnesses, including those described herein, because the Defendants
wilfully, wantonly and fraudulently misrepresented their products.
552.As a direct and proximate result of one or more of the foregoing unsafe
and defective conditions of said products, the Plaintiffs sustained severe and
permanent injuries and illnesses, both externally and internally, and were and will
be hindered and prevented from attending to their usual duties, obligations and
employment, have lost and will in the future lose the value of that time, have
suffered great pain and anguish, both in mind and body, and will in the future
continue to suffer, and have expended and became liable for, and will expend
and become liable for, large sums of money for medical care and services
endeavoring to become healed and cured of their injuries.
COUNT XXI
MEDICAL MONITORING
553.Plaintiffs, on behalf of themselves and all others similarly situated, repeat
and reallege, as if fully set forth herein, each and every allegation contained in
the above paragraphs and further allege:
554.Plaintiffs and class members have been significantly exposed to proven
addictive and hazardous substances through the intentional, negligent, or
wrongful actions of the Defendants.
555.As a proximate result of this exposure, Plaintiffs and class members
suffer significantly increased risks of developing serious, latent diseases.
556.That increased risk makes periodic diagnostic medical examinations
reasonably necessary.
557.Monitoring and testing procedures exist which make the early detection
and treatment of disease possible and beneficial.
558.Defendants' actions render them liable to pay all costs of a
comprehensive court- supervised medical monitoring program, to provide
diagnostic and treatment services for the benefit of the class.
COUNT XXII
INTENTIONAL EXPOSURE TO A HAZARDOUS SUBSTANCE
559.Plaintiffs, on behalf of themselves and all others similarly situated, repeat
and reallege, as if fully set forth herein, each and every allegation contained in
the above paragraphs and further allege:
560.Defendants have deliberately exposed Plaintiffs and class members to
substances Defendants have known to be hazardous, addictive and toxic, namely
cigarettes, other tobacco products, nicotine, and other toxic substances within
their tobacco products. Class members have been harmed and injured thereby.
561.As a direct and proximate result of one or more of the foregoing unsafe
and defective conditions of said products, the Plaintiffs sustained severe and
permanent injuries and illnesses, both externally and internally, and were and will
be hindered and prevented from attending to their usual duties, obligations and
employment, have lost and will in the future lose the value of that time, have
suffered great pain and anguish, both in mind and body, and will in the future
continue to suffer, and have expended and became liable for, and will expend
and become liable for, large sums of money for medical care and services
endeavoring to become healed and cured of their injuries.
COUNT XXIII
LOSS OF CONSORTIUM
562.Plaintiffs, on behalf of themselves and all others similarly situated, repeat
and reallege, as if fully set forth herein, each and every allegation contained in
the above paragraphs and further allege:
563.Plaintiffs' spouses have been the lawfully wedded spouses of the
Plaintiffs, who lived with, consorted with and cohabitated with the Plaintiffs.
564.Prior to the occurrence complained of herein, the Plaintiffs were in good
health and fully capable of performing, and did actually perform, their duties as
wife or husband, lover, mother or father, companion and caretaker of their
household, their spouse and their children.
565.Since the time of the occurrence complained of herein, and as a direct
and proximate result of the injuries sustained by the Plaintiffs, the Plaintiffs'
spouses have been deprived of the love, companionship, affection, society,
sexual consortium, comfort and physical support which they previously received
from their spouses and they will continue in the future to be deprived of said
love, companionship, affection, society, sexual consortium, comfort and physical
support in their domestic affairs.
566.As a direct and proximate result of the aforementioned, the Plaintiffs'
spouses sustained severe and permanent injuries and illnesses, both externally
and internally, and were and will be hindered and prevented from attending to
their usual duties, obligations and employment, have lost and will in the future
lose the value of that time, have suffered great pain and anguish, both in mind
and body, and will in the future continue to suffer, and have expended and
became liable for, and will expend and become liable for, large sums of money
for medical care and services endeavoring to become healed and cured of their
injuries.
COUNT XXIV
CORPORATE RESPONSIBILITY:
JOINT VENTURES, PARENT/SUBSIDIARIES,
AND/OR SUCCESSOR CORPORATIONS
567.Plaintiffs, on behalf of themselves and all others similarly situated, repeat
and reallege, as if fully set forth herein, each and every allegation contained in
the above paragraphs and further allege:
568.As a result of their participation in various joint ventures,
parent/subsidiary relationships, and/or successor corporations, Defendants are
liable to the Plaintiffs.
569.As a result of their negligent supervision and actual supervision of
various joint ventures, parent/subsidiary relationships, and/or successor
corporations, Defendants are liable to the Plaintiffs.
570.As a result of the invalidity of various indemnification agreements,
Defendants are liable to Plaintiffs.
571.Defendants are liable to the Plaintiffs, as alter egos of their joint
ventures, parent/subsidiary relationships, and/or successor corporations.
572.As a direct and proximate result of one or more of the foregoing unsafe
and defective conditions of said products, the Plaintiffs sustained severe and
permanent injuries and illnesses, both externally and internally, and were and will
be hindered and prevented from attending to their usual duties, obligations and
employment, have lost and will in the future lose the value of that time, have
suffered great pain and anguish, both in mind and body, and will in the future
continue to suffer, and have expended and became liable for, and will expend
and become liable for, large sums of money for medical care and services
endeavoring to become healed and cured of their injuries.
WHEREFORE, the Plaintiffs, LEE DALEY, individually, and as representative
of the Estate of THOMAS J. DALEY, LOUIS H. ARADO, individually, and as
representative of the Estate of DOROTHY ARADO, DAVID B. DENBERG,
RICHARD J. FALTICO, LLOYD FULKERSON, MARY FULKERSON, LESLIE
FULKERSON, individually, and as representative of the Estate of STEPHEN
FULKERSON, ROSEMARIE HAMMER, JUDY J. JAEGER, KAY MARTINSON,
ELIZABETH MERRYFIELD, EDWARD A. O'MALLEY, CHARLENE O'MALLEY and
SANDRA RUDMAN, individually and on behalf of all others similarly situated, by
and through their attorneys, KENNETH B. MOLL & ASSOCIATES, LTD., demands
judgment against the Defendants, AMERICAN BRANDS, INC., THE AMERICAN
TOBACCO COMPANY, INC., B.A.T. INDUSTRIES P.L.C., BATUS HOLDINGS, INC.,
BATUS, INC., BRITISH AMERICAN TOBACCO CO., LTD., THE BROOKE GROUP,
LIMITED, BROWN & WILLIAMSON TOBACCO CORPORATION, THE COUNSEL
FOR TOBACCO RESEARCH - U.S.A., INC., HILL & KNOWLTON, INC., INDUSTRIES
PLC, LIGGETT GROUP, INC., LIGGETT & MYERS, INC., LOEWS CORPORATION,
LORILLARD CORPORATION, LORILLARD, INC., LORILLARD TOBACCO
COMPANY, INC., PHILIP MORRIS COMPANIES, INC., PHILIP MORRIS
INCORPORATED, R.J. REYNOLDS TOBACCO COMPANY, RJR NABISCO, INC.,
SMOKELESS TOBACCO COUNCIL, INC., THE TOBACCO INSTITUTE, INC.,
UNITED STATES TOBACCO COMPANY, UST, INC., ADAMS APPLE
DISTRIBUTING MANAGEMENT CORP. d/b/a ADAMS APPLE DISTRIBUTING CO.,
ARANGOLD CORPORATION d/b/a J & R TOBACCO COMPANY d/b/a ARANGO
CIGAR CO., BURKLUND DISTRIBUTORS, INC. - EAST PEORIA f/k/a
SPRINGER-BURKLUND COMPANY d/b/a BURKLUND DISTRIBUTORS, CULLEN
DISTRIBUTORS, INC., EBY- BROWN COMPANY OF JOLIET d/b/a EBY-BROWN
CO., MERCHANTS WHOLESALE INC. d/b/a MERCHANTS WHOLESALE, and
REPUBLIC TOBACCO MANAGEMENT CORP., and each of them, and in favor of
the Plaintiffs and all others similarly situated, for a sum in an amount in excess
of the jurisdictional limit of the County Department, Law Division of the Circuit
Court of Cook County, Illinois, that will properly, adequately and completely
compensate Plaintiffs for the nature, extent and duration of their injuries and
damages, the costs of this action and as follows:
a. Certify this action as a class action including any subclasses which this
Court
deems appropriate to designate;
b. Appoint the law firm of KENNETH B. MOLL & ASSOCIATES, LTD. as class
counsel;
c. Order Defendants to fund Court-supervised or Court-approved programs
to
medically monitor Class members, to pay or reimburse the cost of smoking-
related medical treatment of Class members, to assist Class members in efforts
to quit smoking, and to provide public education campaigns about the health
hazards of cigarette smoking;
d. Order the return of monies Defendants have received from sales of
cigarettes to
Class members;
e. Award punitive or exemplary damages in an amount sufficient to punish
Defendants and deter them and others from similar wrongdoing;
f. Award compensatory damages and such other monetary, injunctive,
equitable
and declaratory relief as the Court deems just and proper;
g.Award the fees and costs of suit; and
h. Award all equitable, injunctive and monetary relief and penalties due to
Plaintiffs
and Class members (or for their benefit) under the Illinois Consumer Fraud and
Deceptive Business Practices Act.
RESPECTFULLY SUBMITTED, By:
Attorneys for Plaintiffs --------------44B8109A2271--
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