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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