Wednesday, 14 March 2012

Day 3 - Representing smokers' interests

The third day of Montreal’s class action tobacco trial picked up where it had left the day before – with Bruce Johnston questioning Imperial Tobacco Canada Ltd.’s (ITL) former director of public affairs, Michel Descôteaux about his views in 1981 on a proposed BAT handbook on ‘Smoking and Health’ for employees. (Exhibit 4) Attention was focused on one particular aspect of a document - in this case Mr. Descôteaux’s recommendations on how to communicate the risks of smoking to employees, including his advice to say that “99% of smokers do not contract (or die from) lung cancer." (Elsewhere, the document shows that BAT preparing to tell its employees that “further reductions in the incidence of diseases associated with smoking” were forecast.)

How to communicate the risks of smoking was a question that Mr. Descoteaux was familiar with, as seen in both his testimony and the documents he wrote which have been entered as exhibits in the trial. He clearly had his own views on how to communicate risk. He wouldn’t say, for example, that “15% of smokers die from lung cancer” but would rather say that “85% of smokers do not die from cancer.” He explained that his job was to produce communications materials  that people with only a grade 2 education could understand, yet vociferously denounced as ‘absurd’ a statement like ‘each cigarette takes 5.5 minutes off your life.’

One by one, 7 more documents were introduced, and used as a basis for questioning Mr. Descôteaux on his work at Imperial Tobacco Canada Ltd. Each time one of these exhibits is presented, it is displayed on the courtrooms 8 monitors. The document also becomes electronically accessible in the non-confidential section of a database developed for the trial. Exhibits, transcripts, expert opinions and other  trial documents can be accessed at: (

Exhibit 5, for example, was a 1988 proposal by Mr. Descôteaux to proposed increased support to the Smokers Freedom Society that could, among other things, give a “sympathetic ear” to the “harassed smoker… without telling them, once again, that they have only themselves to blame and that they should quit.”  The Society, he suggested in this memo, could serve as the voice of smokers with regulators and the media, a source of information to smokers, and a funder of challenges to smoke-free laws. More than 20 years later, in responding to Mr. Johston’s questions, Mr. Descôteaux confirmed that the organization was “formed to represent  the rights and interests of smokers.”

The next documents provided insight into what rights and interests of smokers were represented by the Society. These included:  commissioning a report to challenge the conclusion of the Royal Society that tobacco was addictive (Exhibit 6), writing Health Canada to suggest that proposed health warnings went too far in linking smoking with disease (Exhibit 8, under reserve).  Although Mr. Descoteaux agreed when asked by Mr. Johnston whether the interests of smokers might also include being warned of the risks of smoking, none of the documents presented suggested that this was part of their plan of work.

The overlap between the focus of the Smokers Freedom Society and the goals of the tobacco companies, to which Mr. Johnston alluded, was linked more formally in a strategic analysis written by the President of the Canadian tobacco industry group, the Canadian Tobacco Manufacturers’ Council (CTMC).  This document (Exhibit 7) reveals that in 1991, the CTMC provided with Smokers Freedom Society with more than $900,000.

“An addiction is something you can’t get rid of”

A good part of the afternoon’s questioning was focused on addiction – on the actions of the Smokers Freedom Society to challenge a scientific consensus on the addictiveness of tobacco (by commissioning an widely distributing an opposing opinion by the University of Montreal’s Dollard Cormier) and on the role Imperial Tobacco may have played in that campaign. Mr. Descôteaux told the court that he didn’t believe that cigarettes were addictive in 1988 and that he still didn’t.  “Nothing in cigarettes prevents people from quitting,” he said. "My hypothesis is that addiction is in the individual.” He pointed to his own ability to quit smoking (twice) without difficulty, and to the fact that some individuals were addicted to patterns, like gambling, that did not involve a consumed substance in the way of cigarettes or alcohol to illustrate his points.  He likened his feelings about golf to addiction, and said he was unable to play the 97th game in a season without going to bed thinking about the next game.

The last document to be introduced showed that in 1976 Mr. Descôteaux was an early adopter of understanding the addictiveness of smoking. To assist his colleague, Tony Kalhok, prepare for a meeting arranged by BAT in its Chelwood facilities, Mr. Descôteaux prepared a memo on how the industry could fare better against attacks if it exhibited “a willingness to challenge and be challenged.” (Exhibit 11). 

“A word about addiction,” he cautioned. “For some reason, tobacco adversaries have not, as yet, paid too much attention to the addictiveness of smoking. This could become a very serious issue if someone attacked us on this front.  We all know how difficult it is to quit smoking and I think we could be very vulnerable to such criticism.”  He suggested a way to manage this vulnerability:  “I think we should study this subject in depth, with a view towards developing products that would provide the same satisfaction as today’s cigarettes without “enslaving” consumers.” This suggestion provoked someone to enter a marginal note: “Much of the satisfaction is in the effects of nicotine… i.e. would you pay $12 for 40 oz of gin if it didn’t contain alcohol?”

A few reservations

Despite the cordial tone that is set by the judge and professionally respected within Courtroom 17.09 , there were a few flashes of tension.  Almost twenty times the lawyer for Imperial Tobacco, Deborah Glendinning, rose to object to a question put to Mr. Descôteaux or to a document that was being entered in evidence. Only once did Justice Riordan agree with her. 

By mid-morning, Justice Riordan clarified that Mr. Descôteaux's positions were favourable to Imperial Tobacco and that he would now be considered a ‘hostile’ witness, a procedure which provides the plaintiffs with greater latitude in their questions. 

Of the 11 exhibits produced so far, at least 3 were objected to by industry lawyers and are on “reserved” status while awaiting a decision on their admissibility.

Hearings for this trial take place Monday to Thursday.  Tomorrow (March 15), Mr. Descoteaux will continue to testify, and will likely do so until next week, when Mr. Kalhook is expected to appear.