Litigation in Argentina: challenging the tobacco industry

Objective

To evaluate the processes and outcomes of tobacco litigation in Argentina and to analyse the strategies of the tobacco industry to oppose litigation using tobacco industry documents.

Methods

A systematic search of tobacco industry documents on the internet dating from 1978 to 2002. Law library searches using Argentinean official and unofficial reports systems were combined with computerised online searches.

Results

There have been at least 15 failed litigation cases in Argentina and the tobacco industry presented a concerted defence in every claim regardless of cost. We categorised 11 cases as product liability and nicotine addiction, two as health care reimbursement, and two as criminal law and secondhand smoke. Industry strategies included hiring legal consultants from prestigious international and Argentinean law firms and developing litigation prevention programmes. Industry monitored legal academic meetings, controlled the development of new product liability legislation, obtained favourable opinions from experts, and closely observed the development of litigation in Argentina.

Conclusion

The strategies used by the industry have been successful in preventing recovery for tobacco injuries through litigation. Argentinean health advocates and lawyers need to be aware of the roles and strategies of the tobacco industry in order to develop effective litigation in Argentina.     

Historians' testimony on "common knowledge" of the risks of tobacco use: a review and analysis of experts testifying on behalf of cigarette manufacturers in civil litigation

A qualitative analysis of the trial and deposition testimony of professional historians who have testified on behalf of the tobacco industry shows that defence historians present a view of past knowledge about tobacco in which the public was frequently warned that cigarettes were both deadly and addictive over the broad historical period. While defence historians testify to conducting significant levels of independent research, they also draw upon a common body of research conducted by industry counsel to support its litigation efforts. Defence historians unduly limit their research materials, ignoring industry records and, therefore, critically undermine their ability to evaluate industry activity in the smoking and health controversy as it unfolded in historical time. A consequence is that defence historians present a skewed history of the cigarette in which the tobacco industry all but ceases to exist.     

Tobacco industry litigation strategies to oppose tobacco control media campaigns

Objective

To document the tobacco industry''s litigation strategy to impede tobacco control media campaigns.

Methods

Data were collected from news and reports, tobacco industry documents, and interviews with health advocates and media campaign staff.

Results

RJ Reynolds and Lorillard attempted to halt California''s Media Campaign alleging that the campaign polluted jury pools and violated First Amendment rights because they were compelled to pay for anti‐industry ads. The American Legacy Foundation was accused of violating the Master Settlement Agreement''s vilification clause because its ads attacked the tobacco industry. The tobacco companies lost these legal challenges.

Conclusion

The tobacco industry has expanded its efforts to oppose tobacco control media campaigns through litigation strategies. While litigation is a part of tobacco industry business, it imposes a financial burden and impediment to media campaigns'' productivity. Tobacco control professionals need to anticipate these challenges and be prepared to defend against them.     

Scottish court dismisses a historic smoker's suit

The decision in a Scottish smoker's case, McTear v. Imperial Tobacco Limited, that there was no scientific proof of causation between the plaintiff's smoking and his death from lung cancer, accepted all of the traditional arguments that the tobacco industry has made throughout the history of tobacco litigation, including that epidemiology is not an adequate branch of science to draw a conclusion of causation, that the tobacco industry has no knowledge that its products are dangerous to consumers, and that, despite this lack of knowledge, the plaintiff had sufficient information to make an informed decision about the dangers of smoking. This case relied on outmoded methods of reasoning and placed too great a faith in the tobacco industry's timeworn argument that "everybody knew, nobody knows". Further, the judge found it prejudicial that the plaintiff's expert witnesses were not paid for their services because she was indigent, believing that the lack of payment placed in doubt their credibility and claiming that the paid tobacco expert witnesses had more motive to testify independently because they had been paid, a perverse and novel line of reasoning. The McTear case contrasts unfavourably with the recent decision in United States v. Philip Morris, a United States decision that found the tobacco industry defendants to be racketeers, based both on the weight of a huge amount of internal tobacco industry documents showing that the tobacco industry knew their products were addictive and were made that way purposely to increase sales, and on the testimony of expert witnesses who, like those who testified in McTear, have made the advancement of the public health their life's work and are not "hired guns". The McTear case's reasoning seems outdated and reminiscent of early litigation in the United States. Hopefully, it will not take courts outside of the United States 40 more years to acknowledge the current scientific knowledge about smoking and health.     

"Everyone knew but no one had proof": tobacco industry use of medical history expertise in US courts, 1990-2002

Historians have played an important role in recent tobacco litigation, helping the industry with its defence of "common knowledge" and "open controversy". Historians re-narrate the past, creating an account for judges and juries that makes it appear that "everyone has always known" that cigarettes are harmful, meaning that smokers have only themselves to blame for their illnesses. Medical historians are also employed to argue that "honest doubts" persisted in the medical community long past the 1950s, justifying as responsible the industry's longstanding claim of "no proof" of hazards. The industry's experts emphasise the "good science" supported by the industry, and ignore the industry's role in spreading doubts about the reality of tobacco hazards.     

Philip Morris's website and television commercials use new language to mislead the public into believing it has changed its stance on smoking and disease

Objectives

This paper analyses Philip Morris''s evolving website and the legal strategies employed in its creation and dissemination.

Methods

Internal tobacco documents were searched and examined and their substance verified and triangulated using media accounts, legal and public health research papers, and visits to Philip Morris''s website. Various drafts of website language, as well as informal discussion of the website''s creation, were located in internal Philip Morris documents. I compared website statements pertaining to Philip Morris''s stance on cigarette smoking and disease with statements made in tobacco trials.

Results

Philip Morris created and disseminated its website''s message that it agreed that smoking causes disease and is addictive in an effort to sway public opinion, while maintaining in a litigation setting its former position that it cannot be proved that smoking causes disease or is addictive.

Conclusions

Philip Morris has not changed its position on smoking and health or addiction in the one arena where it has the most to lose—in the courtroom, under oath.     

Tobacco industry strategy to undermine tobacco control in Finland

Objective: To identify and explain tobacco industry strategy in undermining tobacco control measures in Finland and results of these interferences in tobacco policy development during the 1980s and early 1990s.

Methods: Tobacco industry documents, which have been publicly available on the internet as a result of litigation in the USA, were analysed. Documents were sought by Finland and by names of organisations and tobacco control activists. Documents were accessed and assessed between September 2000 and November 2002. Tactics of the tobacco industry activities were categorised as presented by Saloojee and Dagli.

Results: The international tobacco companies utilised similar strategies in Finland as in other industrial markets to fight tobacco control and legislation, the health advocacy movement, and litigation. These activities slowed down the development and implementation of the Tobacco Act in Finland. However, despite the extensive pressure, the industry was not able to prevent the most progressive tobacco legislation in Europe from being passed and coming into force in Finland in 1977 and in 1995.

Conclusion: Denying the health hazards caused by tobacco—despite indisputable scientific evidence—decreased the credibility of the tobacco industry. Strategy of denial was falsely chosen, as health advocacy groups were active both in society and the parliamentary system. The strong influence of the tobacco industry may have in fact increased the visibility of tobacco control in Finland as the litigation process was also drawing attention to negative health effects of tobacco. Therefore the tobacco industry did not manage to convince public opinion. However, the tobacco industry did obtain experience in Finland in how to object to tobacco control measures.

     

Understanding Philip Morris's pursuit of US government regulation of tobacco

Objective: To investigate Philip Morris's support of US Food and Drug Administration (FDA) regulation of tobacco products and analyse its relationship to the company's image enhancement strategies.

Data sources: Internal Philip Morris documents released as part of the Master Settlement Agreement.

Methods: Searches of the Legacy Tobacco Documents Library (http://legacy.library.ucsf.edu) beginning with such terms as "FDA" and "regulatory strategy" and expanding to include relevant new terms.

Results: Philip Morris's support for government regulation of tobacco is part of a broader effort to address its negative public image, which has a damaging impact on the company's stock price, political influence, and employee morale. Through regulation, the company seeks to enhance its legitimacy, redefine itself as socially responsible, and alter the litigation environment. Whereas health advocates frame tobacco use as a public health policy issue, Philip Morris's regulatory efforts focus on framing tobacco use as an individual choice by informed adults to use a risky product. This framing allows Philip Morris to portray itself as a reasonable and responsible manufacturer and marketer of risky products.

Conclusions: Philip Morris's ability to improve its image through support of FDA regulation may undermine tobacco control efforts aimed at delegitimising the tobacco industry. It may also create the impression that Philip Morris's products are being made safer and ultimately protect the company from litigation. While strong regulation of tobacco products and promotion remain critical public health goals, previous experiences with tobacco regulation show that caution may be warranted.

     

Tobacco industry manipulation of the hospitality industry to maintain smoking in public places

OBJECTIVE: To describe how the tobacco industry used the "accommodation" message to mount an aggressive and effective worldwide campaign to recruit hospitality associations, such as restaurant associations, to serve as the tobacco industry's surrogate in fighting against smoke-free environments. METHODS: We analysed tobacco industry documents publicly available on the internet as a result of litigation in the USA. Documents were accessed between January and November 2001. RESULTS: The tobacco industry, led by Philip Morris, made financial contributions to existing hospitality associations or, when it did not find an association willing to work for tobacco interests, created its own "association" in order to prevent the growth of smoke-free environments. The industry also used hospitality associations as a vehicle for programmes promoting "accommodation" of smokers and non-smokers, which ignore the health risks of second hand smoke for employees and patrons of hospitality venues. CONCLUSION: Through the myth of lost profits, the tobacco industry has fooled the hospitality industry into embracing expensive ventilation equipment, while in reality 100% smoke-free laws have been shown to have no effect on business revenues, or even to improve them. The tobacco industry has effectively turned the hospitality industry into its de facto lobbying arm on clean indoor air. Public health advocates need to understand that, with rare exceptions, when they talk to organised restaurant associations they are effectively talking to the tobacco industry and must act accordingly.     

Nicotine addiction through a neurogenomic prism: ethics, public health, and smoking.

Studies are under way to examine the neurogenetic factors contributing to smoking behaviors. The combined approaches of genomics, molecular biology, neuroscience, and pharmacology are expected to fuel developments in pharmacogenetics, to create new genetic tests, and ultimately to provide the basis for innovative strategies for smoking cessation and prevention. The emergence of a neurogenomic understanding of nicotine addiction is likely to induce fundamental changes in popular, clinical, and public health views of smoking, which could significantly shape existing practices and policies to reduce tobacco use. Still a nascent area of research, nicotine addiction provides an excellent case study through which to anticipate key ethical and policy issues in both behavioral genetics and the neurogenomics of addictive behaviors.     

Second hand smoke and risk assessment: what was in it for the tobacco industry?

OBJECTIVE: To describe how the tobacco industry attempted to trivialise the health risks of second hand smoke (SHS) by both questioning the science of risk assessment of low dose exposure to other environmental toxins, and by comparing SHS to such substances about which debate might still exist. METHODS: Analysis of tobacco industry documents made public as part of the settlement of litigation in the USA (Minnesota trial and the Master Settlement Agreement) and available on the internet. Search terms included: risk assessment, low dose exposure, and the names of key players and organisations. RESULTS/CONCLUSION: The tobacco industry developed a well coordinated, multi-pronged strategy to create doubt about research on exposure to SHS by trying to link it to the broader discussion of risk assessment of low doses of a number of toxins whose disease burden may still be a matter of scientific debate, thus trying to make SHS their equivalent; and by attempting, through third party organisations and persons, to impugn the agencies using risk assessment to establish SHS as a hazard.     

The case for fire safe cigarettes made through industry documents

OBJECTIVES: To examine the extensive research undertaken by the tobacco industry over the past 25 years toward development of a fire safe cigarette. METHODS: Research was conducted through a web based search of internal tobacco industry documents made publicly available through the 1998 Master Settlement Agreement. RESULTS: The documents reveal that the tobacco industry produced a fire safe cigarette years ago, but failed to put it on the market. These findings contradict public industry claims that denied the technical feasibility and commercial acceptability of fire safe cigarettes. Internal documents also reveal a decades long, coordinated political strategy used to block proposed legislation and obfuscate the fire safe issue. CONCLUSIONS: Federal legislation mandating fire safe cigarettes is needed.     

美国烟草业的挑战和减害研究的历史与现状

回顾了自20世纪50年代吸烟与健康科学研究兴起以来美国烟草业所面临的种种挑战,以及面对这些挑战美国烟草业采取的对策:客观承认吸烟的危害,树立良好的负责任的公众形象,加强吸烟与健康及减害理论与技术的研究,积极开发低危害卷烟产品。     

Playing hide-and-seek with the tobacco industry.

Despite many peer-reviewed works that draw on tobacco industry documents that have now been made public, questions remain about how complete a picture has emerged. We present a conceptual framework that identifies and evaluates tobacco industry efforts to conceal information. Widespread document destruction like that in recent litigation in Australia is just one of more than a dozen tobacco industry efforts to prevent access, or at least timely access, to documents. Industry efforts range from small, locally employed initiatives to company-wide tactics. Some efforts, such as using "oral only" procedures, scrambling telephone lines, or involving lawyers in scientific projects, are preemptive. Others seek to deal with already existing documents by invoking bogus claims of legal privilege, stipulating "read then destroy" for memos, and rewriting problematic memos. That evidence of concealment has, in fact, been found in tobacco company archives attests to the futility of attempting to control the flow of millions of pieces of paper among tens of thousands of employees. However, researchers have yet to reveal the full story: We know of the industry's failures in concealing information, but not its successes. The industry's objective is not destruction of information per se, but prevention of public disclosure of that information. Exposing the tobacco industry's many approaches to concealment provides greater insight into companies' intentions and potential means for stripping away that concealment.     

Tobacco industry use of judicial seminars to influence rulings in products liability litigation

Objectives

This paper examines the tobacco industry''s efforts to influence litigation by sponsoring judicial seminars.

Methods

Thousands of internal tobacco documents were examined, including memos, reports, presentations, and newsletters. Connections to outside organisations were corroborated by examining tobacco industry financial records, budgets, and letters pledging funds. Facts about outside organisations were triangulated through examining their websites and publicly‐filed financial records, and verifying facts through their representatives'' statements in newspaper and law review articles.

Results

There are direct financial ties between the tobacco industry and groups that organise judicial seminars in an effort to influence jurisprudence, and judges who attend these seminars may be breaching judicial ethics either by not inquiring about the source of funding or by ignoring funding by potential litigants.

Conclusions

The tobacco industry''s attempts to clandestinely influence judges'' decisions in cases to which they are a party endangers the integrity of the judiciary.     

Old ways, new means: tobacco industry funding of academic and private sector scientists since the Master Settlement Agreement

When, as a condition of the Master Settlement Agreement (MSA) in 1998, US tobacco companies disbanded the Council for Tobacco Research and the Center for Indoor Air Research, they lost a vital connection to scientists in academia and the private sector. The aim of this paper was to investigate two new research projects funded by US tobacco companies by analysis of internal tobacco industry documents now available at the University of California San Francisco (San Francisco, California, USA) Legacy tobacco documents library, other websites and the open scientific literature. Since the MSA, individual US tobacco companies have replaced their industry-wide collaborative granting organisations with new, individual research programmes. Philip Morris has funded a directed research project through the non-profit Life Sciences Research Office, and British American Tobacco and its US subsidiary Brown and Williamson have funded the non-profit Institute for Science and Health. Both of these organisations have downplayed or concealed their true level of involvement with the tobacco industry. Both organisations have key members with significant and long-standing financial relationships with the tobacco industry. Regulatory officials and policy makers need to be aware that the studies these groups publish may not be as independent as they seem.     

Tobacco harm reduction strategies: the case for physical activity.

Since the effects of tobacco smoke are so detrimental to health, growing consideration has been given to the development of harm reduction strategies for those smokers who are unable or unwilling to stop using tobacco. The term harm reduction refers to a policy, strategy, or particular intervention that assumes continued use of an undesired behavior and aspires to lower the risk of adverse consequences associated with the continuation of this addictive behavior. Up to this point, tobacco harm reduction interventions have focused on reducing tobacco-related harm through the utilization of innovative tobacco products, reduced tobacco consumption, and pharmaceutical medications. With the possible exception of medicinal nicotine products, these strategies remain unproven and thus far no scientific or medical literature exists to suggest these harm reduction strategies reduce tobacco-related exposure, morbidity, or mortality. Consequently, a need exists for broadening the range of potentially effective harm reduction strategies. This preliminary review suggests that physical activity has the potential to become one such strategy. Of the eight principles that characterize a harm reduction strategy, all are at least partially satisfied by physical activity. Further, emerging evidence indicates that physical activity may delay the occurrence of disease and premature death initiated by tobacco consumption. Significant concerns remain regarding the practicality of physical activity as a harm reduction strategy and the extent to which participation in physical activity may be used to justify continued smoking.     

Tobacco control implications of the first European product liability suit

Objective: To examine tobacco control implication of the first European product liability suit in Finland.

Methods: Systematic search of internal tobacco industry documents available on the internet and at the British American Tobacco Guildford Depository.

Results: Despite legal loss, the litigation contributed to subsequent tobacco control legislation in Finland. The proceedings revealed that the industry had concealed the health hazards of its products and, despite indisputable evidence, continued to deny them. The positions taken by the industry rocked its reliability as a social actor and thus weakened its chances of influencing tobacco policy. Despite fierce opposition from the tobacco industry, tobacco products were included in the product liability legislation, tobacco was entered on the Finnish list of carcinogens, and an extensive Tobacco Act was passed in Parliament.

Conclusions: Tobacco litigation might not stand alone as a tool for public health policymaking but it may well stimulate national debate over the role of smoking in society and influence the policy agenda.