Tuesday, 8 May 2012

Day 25: Federal government counters industry claims

For information on accessing documents, see note at the end of this post

As it ends its second month, the trial of the Montreal class actions against tobacco companies is setting a brisker pace. The introduction of documents is faster (last week's ruling continues to be felt in new ways as previously reserved documents are being placed on record). The number of exhibits is climbing towards 500, which means there are more documents and more testimonies to refer back to.

Keeping up is an increasing challenge!

Yesterday, the sun shone on the plaintiffs, who were able to put dramatically disturbing documents on the record. Today was the federal government's turn in the light, as they were able to blunt disturbing testimony against them by two former senior officials at Imperial Tobacco - Jean Louis Mercier and Anthony Kalhok. It was also the last day on which these two men are expected to appear at the trial.

Farewell to Jean Louis Mercier

The testimony of Jean Louis Mercier was challenged in three different ways over the morning.

Firstly, Mr. Trudel (on behalf of the plaintiffs) softened the ground underneath him by producing documents that showed that, despite Mr. Mercier's earlier testimony, additives had been put in Canadian cigarettes (Exhibit 286) and that despite earlier testimony, the company sought to find "ways of telling people in a subtle and acceptable manner that it is 'alright to smoke'" (Exhibit 288). Mr. Trudel's questions about the consumer research project Plus/Minus (Exhibit 284) spurred Mr. Mercier to admit for the first time that their studies into the smoking choices of 'starters' were not only to forecast future demand (a common explanation in previous trials), but were also used to inform advertising campaigns.

The credibility of Mr. Mercier was surprisingly challenged, albeit in a polite way, by Imperial Tobacco lawyer Suzanne Coté. In her cross-examination, she suggested that Mr. Mercier was not qualified to respond to many of the questions put to him, and that Dr. Stewart Massey (a former scientist whose status as witness is not yet clear) might be "in a better position" to talk about about compensation, addiction, ames tests, causality, mouse-skin painting, etc.

But the real diminishment of this witness came when Maurice Regnier, on behalf of the federal government, came out with a one-two punch that knocked down two of Mr. Mercier's claims against Health and Welfare Canada.

(As explained elsewhere the federal government is involved in this case because the companies have filed "actions in warranty" which attempt to deflect to them responsibility for the way cigarettes were sold. In August, the federal government will try to persuade the Quebec Court of Appeal that last year's Supreme Court decision to strike down similar 'third party' motions should apply to this case. Until then, the feds are in this non-love triangle. Today was the first time in this stage of the trial that they have engaged with witnesses.)

After politely introducing himself to the witness, Mr. Regnier set quickly to the work of challenging two key charges against his client: 1) that the government had not sought a reduction in nicotine levels and 2) that there was an agreement between industry and government that the industry not communicate health risks.

Mr. Regnier's first two jabs were with letters written to the CTMC in 1976 and 1978, requesting reductions in maximum tar and nicotine levels and in market average levels (Exhibit 50001 and 50002). The Minister of Health (the Hon. Marc Lalonde) had asked the industry to reduce the maximum level of nicotine in cigarettes, and the assistant deputy minister (Dr. Alex Morrison) had requested a reduction in the market average nicotine levels.

Would you not now admit that the government also asked you to reduce nicotine ?

16 varied warnings appeared
on Swedish cigarette
packages after 1975
Mr. Regnier's second third and fourth jabs were an exchange in 1977 between Dr. Morrison and Mr. Paul Paré (then head of the CTMC and also Mr. Mercier's boss). Health and Welfare Canada was seeking industry agreement to more than a dozen undertakings, included in which was one for the companies to "adopt the use of several different educational messages as is being done in Sweden." (Exhibit 50003)

Do you remember what the companies said in response?
I don’t.

Not surprisingly, Mr. Regnier had the answer on hand. (Exhibit 50004) Five months after receiving Dr. Morrison's request, Mr. Paul Paré, chair of the CTMC and also Mr. Mercier's defacto boss, replied:
We disagree with this type of activity--member companies should continue as communicators of information to smokers about their own brands, but cannot be reasonably expected to advertise or promote the concept that people should not smoke, or that smoking is bad for you.

Did Imperial Tobacco ever change its mind about this policy (of not promoting the concept that smokign is bad for you)? Not really, conceded Mr. Mercier.  

At 12:45, Justice Riordan and Mr. Mercier thanked each other, and the former president left the court.

The return of - and farewell to - Anthony Kalhok. 

Mr. Kalhok had last been seen on April 18, and had returned to allow the federal government to conduct its cross examination. The delay had served to allow time to assemble documents to challenge his assertion that Health Canada, through a personal meeting between Tony Kalhok and with assistant deputy minister Dr. Alex Morrison, had explicitly approved the marketing of Players Lights cigarettes.

Once again, Mr. Regnier came prepared with correspondence between Health Canada and the tobacco companies that directly refuted the evidence of the witnesses. He began by reading Mr. Kalhok's answer to a question put to him by Imperial Tobacco lawyer, Craig Lockwood about the level of cooperation between the government and the company.

A complaint was lodged with Dr. Morrison in terms of that we were using the word "Light" on a product that had T&N delivery that was not in the category of the Matinées and Craven "A"s, and therefore we were perhaps being misleading. And so I invited Dr. Morrison to come down to Montreal, which he did, and explained to him everything that we were doing, the research behind it, and that we were genuinely trying to put a product out there that would allow to switch down the tar and nicotine level.

Anyway, to make a long story short, once he heard all that, he said to us, "Go ahead, I have no problem in you using the word "Light" on Player's Light." (Transcript, April 18).

No documentary evidence of such a meeting has ever been made public, and Mr. Regnier was left with the challenge of proving the non-existence of a private meeting between two men at an unspecified time.

He did so by laying out a series of correspondence between the federal Minister and assistant deputy Minister over the time that Players was launched. Individually, each document refuted the notion that there was comfort, let alone approval, at Health Canada over the use of the name light on brands, like Players Light, which had relatively high tar levels. Collectively, they made any such meeting seem highly improbable.

On multiple occasions between 1977 and 1979, Health and Welfare Canada had repeated a concern for Players Light and for the establishment of meaningful standards for the use of such terms. On multiple times, Imperial Tobacco and Tony Kalhok had resisted these efforts.

--On April 3 1977, Dr. Morrison wrote Mr. Paul Paré (as chair of the CTMC) to express concern about the use of terms like "light" on cigarettes that were very little different from ordinary cigarettes, and singled out Players Light as an issue of concern. (Exhibit 50005)

--On May 3 May 1977, Mr. Ed Ricard (writing on behalf of ITL) responded to the letter, to defend the use of "light" as a relatiev term and to oppose a standard for the use of the term. (Exhibit 50006)

--Around September 6 1977, Dr. Morrison replied to Ed Ricard to repeat a request for "definitions of the terms "mild" and "light" and how they will be used. Again, Players Light is singled out as being problematic, in that its level of tar is almost as high (17 mg) as the highest tar level for any cigarette. (Exhibits 50009 and 50009A).

--On September 19, 1977, Tony Kalhok wrote a memo to Mr. Ricard to discuss Dr. Morrison's letter, and recommended that the company "stick to its guns" and not accept any standard for the use of terms like "light". He was available to provide further ammunition if necessary  (Exhibit 50009B)
Stick to your guns. Any more ammunition. Were you at war with Dr. Morrison? Mr. Regnier asked. 

--On December 21, 1977 a meeting was held between members of Health and Welfare Canada to discuss issues. The industry adopted the position of Mr. Kalhok,s memorandum (Exhibit 50009B) - i.e. to "stick to its guns" against standards for "light" cigarettes. (Exhibit 50010)

--On October 31, 1978, another meeting was held between the CTMC and members of Health and Welfare Canada, this time including Dr. Morrison, who reports that at the next meeting he wishes to discuss "an industry standard definition of "light" and "mild". (Exhibit 50011)

Mr. Kalhok suggested that the fact Health Canada had not prevented the use of the terms "light" and "mild" supported his testimony that Dr. Morrison had wanted them to "go ahead" and that he "had no problem" with the label.

Is it your testimony that you had an agreement with Dr. Morrison on Light and Players Light?
After I had the discussion with Dr. Morrison, I do not recall any further communication either through CTMC or through Dr. Morrison that we should not continue.

Is it your testimony that at some point in time - you don't know when -  you don’t know how - he agreed with the term  Players Light?
All I can say with all this time going by that his position was such that we did nto have to change the product spec on Light or stop using the term Players Light.

It is one thing to not take any action, another to say “go ahead, I have no problem with it”
Well, that’s my recollection that once having discussed it with him that satisfied his query.

Having clarified the record that Health Canada on numerous occasions requested that the industry change its labelling of lights, Mr. Regnier finished his questions.

"Last chance" Justice Riordan prompted - looking at the company lawyers.  No one stood to offer any documentation to support Tony Kalhok's story of his meeting with Dr. Morrison.

At 4:15, Justice Riordan thanked Mr. Kalhok, who left the court - but not before shaking hands with Imperial staff lawyer John Kiser, who had made a rare appearance at the hearing and was sitting in the back row.

To access trial documents linked to this site:

The documents are on the web-site maintained by the Plaintiff's lawyers. To access them, it is necessary to gain entry to the web-site. Fortunately, this is easy to do. 

Step 1: Click on: https://tobacco.asp.visard.ca

Step 2: Click on the blue bar on the splash-page "Acces direct a l'information/direct access to information" You will then be taken to the document data base. 

Step 3: Return to this blog - and click on any links.