Actual Knowledge

Jacob Sullum from the December 1996 issue

The Cigarette Papers, by Stanton A. Glantz, John Slade, Lisa A. Bero, Peter Hanauer, and Deborah E. Barnes, Berkeley: University of California Press, 539 pages, $29.95

Smokescreen: The Truth Behind the Tobacco Industry Cover-Up, by Philip J. Hilts, Reading, Mass.: Addison-Wesley, 253 pages, $22.00

Ashes to Ashes: America's Hundred-Year Cigarette War, the Public Health, and the Unabashed Triumph of Philip Morris, by Richard Kluger, New York: Alfred A. Knopf, 807 pages, $35.00

In August 1970 a leading tobacco defense attorney, David R. Hardy, wrote a confidential letter warning that indiscreet comments by industry scientists, including references to "biologically active" components of cigarette smoke and "the search for a safer cigarette," "constitute a real threat to the continued success in the defense of smoking and health litigation. Of course, we would make every effort to 'explain' such statements if we were confronted with them during a trial, but I seriously doubt that the average juror would follow or accept the subtle distinctions and explanations we would be forced to urge." Such remarks by employees, Hardy explained, would suggest "actual knowledge on the part of the defendant that smoking is generally dangerous to health, that certain ingredients are dangerous to health and should be removed, or that smoking causes a particular disease. This would not only be evidence that would substantially prove a case against the defendant company for compensatory damages, but could be considered as evidence of willfulness or recklessness sufficient to support a claim for punitive damages."

The letter was among the Brown & Williamson documents leaked to anti-smoking activist Stanton A. Glantz andNew York Times reporter Philip J. Hilts in 1994. It nicely summarizes the quandary of the cigarette companies, which developed largely because of their own dishonesty and continues to this day. In the 1950s, responding to the first widely publicized studies finding a link between smoking and lung cancer, the industry adopted a skeptical posture that was initially reasonable but has long since become a joke. It created the Tobacco Industry Research Council, later renamed the Council for Tobacco Research, supposedly to fund studies examining "all phases of tobacco use and health." Although some CTR-funded researchers produced further evidence of tobacco's hazards, most worked in areas far afield from the CTR's ostensible focus, while certain "special projects" were deliberately selected to cast doubt on the connection between smoking and disease. The CTR helped maintain the pretense that more research was needed--always and forever. The industry's strategy, as Tobacco Institute Vice President Fred Panzer put it in a 1972 memo, was "creating doubt about the health charge without actually denying it." Company officials steadfastly maintained that the case against smoking was not conclusive, and it soon became clear that no amount of evidence would sway them from that position.

In adopting this strategy, the cigarette companies hoped to prevent a decline in sales, discourage government regulation, and avoid potentially ruinous product liability. As the evidence about the health hazards of smoking accumulated, and especially after the 1964 surgeon general's report, liability protection--avoiding the appearance of "actual knowledge"--eclipsed the other concerns. True, the cigarette companies continued to aim propaganda about "the smoking and health controversy" at the general public. The Cigarette Papers, a guide to the juiciest Brown & Williamson documents assembled by Glantz and four co-authors, describes plans in 1969 for a public relations campaign intended to "set aside in the minds of millions the false conviction that cigarette smoking causes lung cancer and other diseases." As late as 1985, R.J. Reynolds ran misleading ads suggesting that a large epidemiological study had not found evidence of a link between smoking and heart disease. But in a culture saturated with warnings about the hazards of smoking, from school curricula to the surgeon general's messages on every pack of cigarettes, few people were buying the industry's wait-and-see line.

It nevertheless remained true that conceding a causal link between smoking and disease would make it easier for tobacco plaintiffs to prevail in court. Furthermore, as Hardy noted in 1970, a sudden reversal of the industry's long-standing position would invite punitive damages based on charges of deliberate wrongdoing. The tobacco companies have always feared (and their opponents have always hoped) that one successful suit would lead to a flood of litigation, sweeping the industry away. Nowadays that fear seems more realistic than ever, given the hundreds of pending state lawsuits, secondhand smoke claims, class actions, and cases filed by individual smokers. In August, a Florida jury told Brown & Williamson to pay Grady Carter, a former smoker with lung cancer, $500,000 in damages, plus $250,000 to his wife. If upheld, this would be the first-ever award to a smoker for tobacco-related disease. In these circumstances--and despite the Liggett Group's settlement of several state lawsuits and the now-defunct Castano class action--the tobacco companies are more determined than ever not to yield an inch.

As these three books show, the industry's defense strategy has produced several paradoxes. Industry lawyers simultaneously argue that the hazards of smoking have never been proven (casting doubt on the link between cigarettes and the plaintiff's illness) and that everyone knows smoking is bad for you (showing that the plaintiff voluntarily assumed the risk). Cigarette manufacturers insisted they were not acknowledging the hazards of smoking even as they responded to health concerns by introducing brands with filters and lower tar yields. Until the late 1980s, despite much research on the issue, tobacco companies declined to market cigarette designs that promised substantial safety improvements, apparently fearing that such innovations would impugn conventional cigarettes by implication and expose them to liability. Now attorneys suing the tobacco companies (including Grady Carter's lawyer) cite the failure to market safer cigarettes as evidence of negligence. Similarly, the industry's see-no-evil attitude, which was supposed to protect it from liability, has prompted charges of a conspiracy to deceive the public--a central theory in most of the current lawsuits.

It is also the central thesis of both The Cigarette Papers and Hilts's Smokescreen. The jacket of Glantz et al.'s book promises "a shocking inside account" that will "fundamentally change the public's perception of the industry." How, exactly, isn't clear. It's not as if the tobacco companies, commonly viewed as sneaky, slimy, and sinister, have been getting a free ride until now. The book does offer many interesting and often amusing contrasts between public and private statements by industry officials. It also brings out the tension between those who favored a more candid approach (usually scientists) and those who insisted that the industry dared not concede anything that might be useful to the enemy (usually lawyers). Had the former group prevailed, the tobacco companies today might not be the most reviled and distrusted industry in America. But their very reputation suggests that the conspiracy of deception alleged by the lawsuits was not terribly successful. In his foreword to The Cigarette Papers, former Surgeon General C. Everett Koop notes that "the public knows about the deleterious effects of smoking," and "[e]ven smokers do not believe what they hear from the tobacco industry." Nevertheless, he says, "smokers and nonsmokers alike should feel misled by the tobacco companies and their deceptive practices." Got that? They should feel misled, even if they weren't.

Similarly, the subtitle of Hilts's book promises "The Truth Behind the Tobacco Industry Cover-Up," which is basically this: When they claimed to believe that smoking may not cause lung cancer, or that nicotine isn't addictive, they didn't really mean it. This "expos�," the jacket says, is a "shocking, fascinating, and infuriating page-turner" that will "make your blood boil." That may be true, but only if you shell out 22 bucks for this over-hyped book, instead of getting a free review copy like I did. It's not that Hilts offers nothing useful or interesting (although there is little here that you can't get from the other two books); it's just that readers expecting startling disclosures will instead find details about something they already know. Tobacco industry dishonesty is a clich�, not a revelation.

In other words: Duh. Both Glantz and Hilts anticipated this objection. "The thing that shocked me was that it was all there," Glantz told The Chronicle of Higher Education in April. "It's a little bit like knowing your wife is sleeping with someone else, versus walking in and catching them. Anybody who follows the tobacco issue, and who's thought about it, just assumed the tobacco companies knew all this stuff--that the tobacco companies had a better understanding of nicotine addiction than anybody else, that they knew smoking caused cancer and heart disease-- because they had to. I mean, they're not stupid. But to see it all spelled out in their own words is amazing."

In a much cited 1963 memo, for example, Addison Yeaman, then Brown & Williamson's vice president and general counsel, stated flatly that "nicotine is addictive. We are, then, in the business of selling nicotine, an addictive drug effective in the release of stress mechanisms." The minutes from a 1978 research conference sponsored by BAT, Brown & Williamson's parent company, said, "There has been no change in the scientific basis for the case against smoking. Additional evidence of smoke-dose related incidence of some diseases associated with smoking has been published. But generally this has long ceased to be an area for scientific controversy." Unlike many of the indiscretions cited by Glantz et al., which could be explained away (though not very convincingly) by creative lawyers, such statements directly contradict the industry's public positions. The amazing thing, though, is not so much the content of the statements as the fact that they were committed to paper and preserved.

Hilts, for his part, attributes doubts about the significance of the tobacco industry cover-up to the conspirators themselves: "But everyone knows what the situation is anyway, they say. It's not as if anyone were actually deceived by the company comments on addiction or the waffling on the hazards of smoke. We only have to speak that way because of what we'll be forced to do in court if we are too open in front of the enemy." Then he goes on, for several paragraphs, to compare people who say such things to "the guards and doctors in the Nazi death camps." Later he concedes that tobacco companies "don't want to be blown all over the landscape by the legal actions of angry smokers when they do admit what they have been doing," and "[t]he fear is understandable." Nevertheless, he insists, "it should be required that the companies come clean." Hilts's commitment to honesty is admirable. I wish he honored it a bit more consistently. Here is what he has to say about me, in a section on secondhand smoke: "They [tobacco companies] paid writers to get stories out attacking the science and the scientists. In one series of ads, a piece by Jacob Sullum, who works for a foundation supported by tobacco, was run whole. In other ads, it was excerpted with the headline, 'If we said it, you might not believe it.' But of course, they did say it. Sullum not only works for a tobacco supported foundation, but was paid directly by the company when they used his story. And, more to the point, his arguments came from industry sources and articles...."

Glantz et al. make a similar effort to discredit me. First they recount a notorious episode from the late 1960s: A public relations agent working for Brown & Williamson paid a sports writer, Stanley Frank, to produce an article criticizing the evidence on smoking and health. The Tobacco Institute, through a P.R. firm, ran an ad promoting the article, which appeared in the January 1968 issue of True magazine, and distributed reprints of the piece. Immediately after relating this story, under the heading, "using the same technique in the 1990s," Glantz et al. note that two of my articles have been reprinted in tobacco company ads.

Here's what actually happened: In 1994 I wrote an op-ed piece for The Wall Street Journal about the Environmental Protection Agency's report on secondhand smoke. R.J. Reynolds subsequently used the piece in an ad campaign and paid me for the reprint rights. I also wrote an article about press coverage of the secondhand smoke issue, which appeared in the Summer 1994 issue of Forbes MediaCritic. Philip Morris reprinted that article in a series of ads. I did not give the company permission to do so (MediaCritic had all rights to the article), and I was not paid. Pace Hilts, neither piece "attack[ed]...scientists," and neither quoted or cited "industry sources and articles." The critics of the EPA report on whom I relied are respected scientists who agree that smoking is hazardous but emphasize that the evidence against secondhand smoke is much less convincing.

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