Thursday, 12 April 2012

Day 15 - “We weren’t people with horns on our heads.”

The third day of Anthony Kalhok’s testimony was scheduled to be his last appearance at the Montreal tobacco trials, but it became apparent by mid-day that the pace of questions and answers would bring this witness also into “overtime”.

As she had throughout the week, Mr. Kalhok's wife, Barbara Kalhok, sat at the back of the courtroom. Other family members were present, at least in the testimony.  Tony Kalhok explained that (although he grew up on a tobacco farm) his mother warned him that smoking would stunt his growth, and laughed at his own lack of height. He also revealed that when he spoke of pressure on smokers from children taping closed their parents cigarette package, he spoke of his own daughter's response to his smoking.

The answers we seek:  A tobacco industry film

Mr. André Lespérance started his examination by picking up where he left the day before - trying to put on the record a film giving an industry perspective on smoking issues. This film, "The answers we seek" had been the subject of a discussion between Mr. Kalhok, when he was Vice President of Marketing for Imperial Tobacco and his colleagues in the research and internal public relations departments.  

The fact that it was produced by the U.S. Tobacco Institute was only one of the concerns of the industry lawyers who objected to the film being allowed into evidence.

As before, Mr. Kalhok was asked to step outside while the lawyers wrangled. He was invited back in after Justice Riordan decided that the film would be allowed as evidence if Mr. Kalhok could identify it as a film he had seen so many decades go – which he did. This film can be viewed here* at and transcript is available courtesy of the Legacy document site.

The discussion between Mr. Kalhok and other Imperial Tobacco department heads over the merits of showing this industry film to their employees revealed the challenges of communicating a company position on smoking and health. In response to Mr. Kalhok's suggestion (Exhibit 148a) that before employees were shown the film they should be provided with “a brief explanation of the 'smoking & health' issue” and “our company's position on this subject,” the head of science cautioned (Exhibit 148) that the film:
“requires us to think through for ourselves what we really believe to be true about S&H, and to communicate this, as well as what our posture as individual people and as a Company ought to be, under the circumstances. This is not an easy task - it boils down to rationalizing both a personal and Company position in the face of difficult circumstances.”
Mr. Lespérance suspended his questions on these issues until a further document became available.  

The answers we seek:  A lawyers’ task

When Mr. Johnston took up the questioning mid-morning, the tone and pace of questions appeared harder and faster -- and the answers appeared more defensive and guarded.  

Unlike the first witnesses, Mr. Kalhok's memory rarely failed him or resulted in questions going unanswered. This did not mean, however, that the answers given actually responded to the questions asked.  

Mr. Johnston's questions mostly centred on documents introduced over the first two days of Mr. Kalhok's appearance. He returned to the themes of Mr. Kalhok's view and the view of Imperial Tobacco on addiction, the health consequences of smoking, the company's relationship to its clients and the uptake of smoking by young people.

It's not addictive if you can quit

Why, he asked, had Mr. Kalhok quoted a scientific definition on addiction instead of giving his personal opinion when he was asked about the topic earlier in the week.  Mr. Kalhok chose his words carefully. “My personal view, because I was a smoker, I said it was habit forming.”

Mr. Johnston referred back to documents that Mr. Kalhok had received or written where the word and concept of addiction had been used. He asked Mr. Kalhok whether it concerned him that a reputable journal like the British Medical Journal (Exhibit 121) was publishing articles that said smoking was addictive. 

“Personally no,” was the reply “I had a personal view and I was satisfied with it.”

Mr. Johnston pressed him to say whether he would have been open to change if he received from a credible source. “Certainly,” Mr. Kalhok answered. “If Dr. Morrison (of Health and Welfare Canada) said ‘Gee – what I told you is no longer our position, here is a new one.”

Mr. Kalhok spoke as though Health Canada had been very influential in Imperial Tobacco’s communications activities.  “There was an understanding,” he said “between ourselves and the government in terms of how we would communicate.”

An agreement with Health Canada not to talk about health issues 

Mr. Johnston explored the understanding with Health Canada and Mr. Kalhok explained that while he had never seen any agreement, he had been informed that the companies “would not enter into a discussion about health that would frustrate anything that the government was doing.” 

Mr. Johnston: “Are you saying that this prevented you putting an insert into the pack and informing smokers that this caused lung cancer?”

Mr. Kalhok:  “My answer, I guess, would be no. But also that it would be irrelevant or an extra expense because we already had a warning on the outside of the package.”

Mr. Johnston: “Was this …sufficient warning of probability of severity of disease?:

Mr. Kalhok: “I did not participate in any discussions on this. I don’t know.”

Mr. Johnston: “Is it the voluntary code that prevented you from advising customers or was it something else?”

Mr. Kalhok: “My mandate was to increase market share. And that’s where my concentration was.”

(For the first weeks of the trial, the lawyer for the government of Canada, Mr. Regnier, sat quietly. When questions were raised yesterday about a possible agreement between government and industry, he stood to say that he would make no objection to the question being asked, but that their view was that the testimony had no “probative value”. Today he objected (unsuccessfully) to such questions being asked. )

Designing products to respond to health concerns. 

Mr. Johnston continued to gave Mr. Kalhok opportunities to acknowledge the health effects of the cigarettes he was marketing on his customers. In sidestepping each of these occasions, Mr. Kalhok looked at times genuinely perplexed at the implication that he or the company could have acted differently.

Mr. Johnston: “In your marketing efforts were you governed by a concern for the health of your customers?”

Mr. Kalhok:  “I guess so.  Since they expressed it as a concern and therefore we would respond to that in a way that made some sense. I think the publication by the government of the tar and nicotine numbers and their commentaries around that created a framework around which you could design products.”

Mr. Johnston:  “The framework around which you could design products… are you seeking to exploit the situation?”

Mr. Kalhok:  “We were responding to the consumers’ expressed desires and their knowledge.  They liked to have a cigarette that was a satisfying as the one they had but had lower tar and nicotine.”

Mr. Johnston:  “Was there a genuine concern for the health of the customers, or just for the market?”

Mr. Kalhok: “There was a general concern.  We weren’t people with horns on our heads. “

Mr. Johnston: “Was it a matter of concern that the product was reportedly killing thousands of people?”

Mr. Kalhok:  “Certainly as a business equation – ff the customer perceived that there was a concern to themselves one of their options was to no longer do it. The impact on the business was that there was less product to sell.”

Mr. Johnston:  “This is how you expressed your concern?”

Mr. Kalhok:  “We were not in a position at least from a marketing point of view to go out and express health risks in a way that was more effectively that what the government was doing.”

Mr. Johnston:  “Why could you not do that?”

Mr. Kalhok:  “We did not have the resource or the expertise to do that.”

Designing products to respond to health concerns. 

The gap between a business approach and a health approach was revealed in another exchange, when Mr. Johnston asked about Mr. Kalhok’s report to senior management about young people smoking (Exhibit 113): “Lest we paint an exaggerated, pessimistic view of the future prospects, we must quickly add that, despite all this, currently we have a stable incidence of smoking. Quitting rates are not increasing, and young people are starting in the same ratios as previously," Mr. Kalhok had written. 

Bruce Johston: “As a business man and as a marketer, was it good news that young people were smoking at the same rate?”

Anthony Kalhok: “From a business point of view it was fine.”

Bruce Johnston: “Was it good news?"

Anthony Kalhok:  “It was a market reality.”

Bruce Johnston:  “Was it good news?”

Anthony Kalhok  “If you are trying to maintain your volume, yes.”

No rest for the former executive

At the end of the day, Justice Riordan asked the lawyers how much more time was required of this witness. Both plaintiff's lawyers said they had more questions to ask, and cross examination by Imperial Tobacco lawyers and the federal government lawyers is also expected.

Mr. Kalhok will return on Tuesday, April 17th.  On Monday April 16th, the industry will be trying to persuade Justice Riordan to reject the expert testimony of three federal government expert witnesses.

* Thanks to a kind reader for this link!