Wednesday, 9 May 2012

Day 26 - Ed Ricard: the company's man

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

Today was the first day that Mr. Edmond Ricard testified at the Montreal class action suits against Canada's three major tobacco companies. Some might argue it was his fifth day, as he was Imperial Tobacco's designated witness during pre-trial examinations for discovery (on June 18, June 19, December 10 and December 11 in 2008).

Mr. Ricard is a solid man, who carries his frame well. With his tan, dark suit and shirt, and greying hair cemented neatly in place, he would not look out of place on the set of The Sopranos. At 51, he is the youngest witness to date, and a tinge of something that might have resembled envy wafted across the courtroom when he said he was in his second year of retirement.

This is not the first time that Mr. Ricard has been Imperial Tobacco's chosen witness.  He testified for the company during the industry's challenge to the 1997 Tobacco Act, and was also their witness during the 1997 hearing of Cecilia Letourneau's small claims court case to recover the costs of  nicotine replacement therapy. (Exhibit 289)

With the same lawyers and witness already having met several times over recent years, it took very little time before the questions and answers assumed a steadiness of partners familiar with the dance.

Certainly Mr. Ricard was the most comfortable sounding witness to date. If testifying in court is an art form, he would score well on technical merits. He always looks at the judge, and paces his answers to the speed of the judge's note taking. His words are chosen with sufficient care that he has no difficulty in repeating an answer with word-for-word exactness. He knows how to avoid a question  - (Would you define cigarettes as toxic? Again, I am not a scientist and I am not going to get into definitions of scientific terms.)  

It may have been these skills that prompted Philippe Trudel  to ask whether Mr. Ricard had attended witness school.  The answer was no, nor had Mr. Ricard  met with lawyers other those from Imperial Tobacco. A natural talent!

Although he is no longer an employee of Imperial Tobacco, Mr. Ricard works with them on this litigation process.  He has clearly not moved entirely into retirement mode - when he speaks of the company he uses the term "we" and speaks in the present tense.

He sounds like a company man, and it is no surprise. Mr. Ricard's roots in Imperial Tobacco are very deep. He joined the company when he was 21 (in 1982), at a time when his eponymous father was the "big boss" -- the chief operating officer of ITL's holding company, IMASCO. Ed Ricard Jr. followed his father's foot-steps in the marketing department and spent the next 28 years working in a number of areas related to marketing strategy. When he retired his title was  "division head in charge of strategy planning and insights."

After such a long tenure at a working level, Mr. Ricard's knowledge of and personal insights into how tobacco products are designed and sold is likely second to none.  That does not mean, however, that Mr. Trudel was able to get him to share that knowledge or insights with the court.

Designing less harmful products.

The trial had earlier heard of Imperial Tobacco's Project Day, which was aimed at reducing toxic components in cigarette smoke. After 2006, responsibility for coordinating harm reduction efforts among the various divisions of the company, was assigned to Ed Ricard.

"There are elements in the tobacco smoke that have been identified as potentially linked to disease or harm," he explained. "Our program was to identify, isolate, and to try to reduce these elements."

Despite repeated questions, he could not name any of these harmful elements. Nor would he offer his own definition of the concept of "toxic."  I will not venture into definitions of toxic. After an objection by ITL,s lawyer, Deborah Glendinning, and a ruling by Justice Riordan, Mr. Trudel was denied the opportunity to get a firm answer as to whether this man who worked on reducing the toxicity of cigarettes believed they were toxic. Nor was there any enlightenment as to when such products might be marketed.

Has there been no success so far?
That depends on how you define success. We don’t have a final product.

Do you have a non-final product that is promising?
There are a lot of promising signs, yes, R&D have been able to find ways of reducing some of the elements. The big challenge that they face right now is in finding a way to measure that in an acceptable fashion nad in a way that would be accepted by the scientific community.

Did you inform government of your progress?
Yes. There has been dialogue with Health Canada since the 1980s. and there is an ongoing dialogue with Health Canada and between R&D and the scientists at Health Canada.


With one of the class action suits entirely devoted to the issue of addiction, one might have expected a company witness to have boned up a little on the subject.  Not so with Mr. Ricard.  When Mr. Trudel asked him if cigarettes were addictive, he gave a common industry reply:
I think cigarette smoking can be hard to stop once you start. Talking about addiction is a tricky thing because it has been redefined over time. As I understand the term today I think tobacco products meet that definition. If something that you do every day meets the definition of addiction, then cigarettes are addictive. 

Mr. Trudel reminded him that this was a similar definition he had given during the examination for discovery, and that in response to an undertaking to provide the basis of this definition, Imperial Tobacco had said "Mr. Ricard cannot recall." Nor today could he provide a more profound reflection on the nature of addiction other than it was something you did every day.

It was between questions on addiction that the mid-morning break was called. Of the more than 30 people in the courtroom, only Mr. Ricard went to the front entrance to smoke a cigarette. One couldn't help thinking that he might have a better understanding of addiction than he offered to the court...

Marketing to Youth

Mr. Ricard was intimately involved in Imperial Tobacco's consumer research, and explained that they used two methods to measure the number of 'starters' in the market. The first was their monthly survey, which asked people (as young as 15) how long they had been smoking their current brand - those who had smoked it for less than a year and had no prior brand were counted as smokers. The second method was to measure over time the incidence of smoking, quitting and never smoking and to calculate the "starting rate."

The reason Imperial Tobacco collected information on smokers as young as 15 was because Statistics Canada provided its demographic data for the 15-19 year age group, and they had wanted to be able to integrate their own studies against census data. As previous witnesses had done, he variously described the age at which Imperial Tobacco considered it permissible to aim to sell cigarettes as 16 (the legal age for smoking until 1994) or 18 (the age identified in the voluntary code).   He suggested that the proportion of the market likely to be consumed by under-age smokers was 3%. 

The youth skew of ITL's research was maybe inadvertently revealed when Mr. Trudel asked whether young people might not be the most price sensitive and therefore the most likely to purchase "kiddy packs" of 15 cigarettes. I can't answer whether cost is a major factor for children.

Well then who is the most cost sensitive?
They tend to be older females -- aged 35 to 49.

There was a laugh from the many in the room well past the upper age range of this "older demographic." If 35 year old women are "older females," then how young are "young adults?"

Duty to Warn

The view within Imperial Tobacco that there was an agreement with Health Canada that prohibited them from voluntarily providing additional warnings to their customers is apparently one shared by Mr. Ricard. It is one he repeated today as he had previously to the Rimouski small claims court (Exhibit 289) and during his examination for discovery.

As he had with Mr. Mercier, Mr. Trudel pushed hard for the origin of this understanding (Imperial Tobacco had provided a copy of the voluntary advertising code in response to a request following Mr. Ricard's disposition - Exhibit 20002). Through multiple exchanges, Mr. Ricard stuck to his script. The agreement was that the industry should not be making heatlh statements on the product or in our advertising.

As he had with Mr. Mercier, Mr. Trudel pointed to the text in the Tobacco Products Control Act that said that the labelling requirements of the law  "did not affect any obligation of a distributor, at common law or under any Act of Parliament or of a provincial legislature, to warn purchasers of tobacco products of the health effects of those products."(Article 9.3)

Before Mr. Ricard could answer the question, and perhaps concede as Mr. Mercier had earlier done that there was no legal impediment after all, JTI-Mcdonald's counsel, Doug Mitchell interrupted. He rattled off an interpretation that "the warnings mandated by the regulation were the only permitted text that was allowed to be on the package,” suggesting that the provision of 9(3) was, at best, moot.

The fact that this red herring of an interjection was completely inaccurate did not stop it from having the effect of shutting down a line of questions, as they had now entered the forbidden territory of legal interpretation. (The Legacy site has copies of the Tobacco Products Control Act and the labelling regulations implemented in 1989 and 1994).

Father and son and forty years. 

Although he was not able to use it as the basis of many questions, Mr. Trudel introduced an intriguing document that gave historical context to the witness and to the company. It was a speech given by Ed Ricard Sr. in 1972. At that time, the new retiree Ed Ricard Jr, would have been in grade school. The speech, given to the family of tobacco distributors and retailers, offers a more detailed picture of the company's approach 40 years ago, in particular its view of its relationship with government. (Exhibit 290). This was one of only 2 exhibits made public today.

Shhh.... it's a secret

Another major evidentiary issue looks ready to bubble to the surface, and the ruling in this instance will affect public access to this important trial.

The marketing papers on which Ed Ricard is expected to be questioned are being claimed as confidential by Imperial Tobacco.  A hearing on ITL's motion for a "sealing order" is scheduled for next week, but an early round on the issue took place late this afternoon, when Mr. Ricard was shown a marketing plan from 1982.   Despite thirty years having passed since this presentation was made, there was very little in it that Mr. Ricard was willing to declare as non-confidential. Advertising expenditures, marketing strategies, media buys were still relevant, he said, to his competitors' ability to figure out how Imperial so successfully grew its market share in that period.

For the moment, the document (Exhibit 291) is for "lawyers' eyes only" -- and if Imperial Tobacco is successful, the doors may close on some key parts of what has to date been a transparent and enlightening trial.

Tomorrow is the last day of hearings this week.  Mr. Ricard is expected to testify into mid-week next week.

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:

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.