Thursday, 31 May 2012

Day 35 - World No Tobacco Day

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

During Dr. Andrew Porter's third day on the witness stand at the Montreal class action trials against Canada's tobacco companies, an overarching narrative of his work over 30 years at Imperial Tobacco finally began to take shape.

Many of the technical and linguistic issues that had strained the first two days seemed to have resolved themselves by Thursday and the conversation between lawyer and witness became more coherent and instructive.

These exchanges, and the dozens of documents entered into evidence revealed two major streams of work for Dr.Porter and his science team. The first was finding ways to modify cigarettes to ensure they remained effective drug delivery systems and  the second was searching for ways to modify cigarettes to make them less effective as disease-delivery systems.

As he had for the first two days, Plaintiff lawyer Pierre Boivin led the questions in the morning, focusing on efforts by the scientists to find ways to adapt their products to the real smoking behaviour of their customers and on ITL's flagship harm-reduction initiative, Project Day.

ITL's better smoking machine reveals that smokers compensate.

Pierre Boivin began the morning by asking Dr. Porter about the company's research into ventilated cigarettes and smoker compensation.

Dr. Porter explained that lower tar cigarettes are made principally by adding air to the cigarette through holes in the paper. Such cigarettes give lower levels of tar when smoked by machines using the measurement standards set by the International Standards Organization and the U.S. Federal Trade Commission. (Health Canada with the support of the British Columbia government pioneered a more "realistic" smoking standard in 1999-2001.)

Pierre Boivin introduced documents that suggest that Imperial Tobacco and BAT were among the first to prove how different  the ISO/FTC measures were from actual smoker behaviour. As early as 1975, Imperial Tobacco had developed its own smoking machine to test what smokers actually inhaled -- finding that all tested smokers changed the way they smoked "in order to duplicate his normal cigarette nicotine intake." (Exhibit 389).

By the mid 1980s (at a time when governments were struggling to accept the limitations of a 'low tar' approach) BAT scientists were sharing research showing that puff volumes have risen as inexorably as machine deliveries have declined... human compensation has, for a significant part of the smoking population, negated attempts to reduce tar deliveries. (Exhibit 391).

In other words, at the same time the company was introducing many lower-tar products on the market, it knew that these products were being  'over-smoked'. No evidence that this knowledge was shared with the public or government has yet been produced.

Since smokers compensate anyway, why not make it easier?

A second series of documents introduced by Pierre Boivin showed that the company not only knew that smokers compensated, but researched ways to design cigarettes that made compensation easier.

In the mid 1980s, BAT was promoting the idea to its affiliates that a better idea than selling low-tar cigarettes that smokers didn't like 'would be to produce a cigarette that can be machine smoked at a certain tar band, but which, in human hands, can exceed this tar banding." (Exhibit 391). They called this quality of cheating the machines "elasticity".

Elasticity was one concept that Imperial Tobacco investigated as it applied the results of its (secret) human smoking tests to its product design, recognizing that "elasticity in the product will give the smoker a greater opportunity for compensation." (Exhibit 358 H), If another wave of tar-reduction were to approach, elastic cigarettes would help make low-tar cigarettes agreeable to smokers (because they wouldn't actually be low tar). (Exhibit 358-G.) A number of design features could be used to achieve elasticity (Exhibit 393).

(A shout out here to my colleagues who studied cigarettes on the Canadian market and found that the ones that sold best were indeed the ones that were elastic).

The evolution of machine deliveries from benchmarks to marketing tools is reflected in a research project entered as Exhibit 358 J. Responding to the adoption of an international (ISO) standard of measurement, Imperial decided that rather than risk putting new numbers on their products, they would redesign the cigarettes so that they matched the previous test results. 

ITL's safer cigarette still hasn't seen the light of Day.

Dr. Porter worked on a number of projects aimed at reducing toxic compounds in cigarette smoke, but ITL's major effort in this regard (as other witnesses, like Jean Louis Mercier, have also testified) was Project Day.  

This project began in earnest in the late 1980s, (Exhibit 395, 396, 397 and 398) and apparently continues to this, um, day.  In its initial stages it was concerned with reducing the compounds that caused lung cancer.  It wasn't that other diseases weren't important, said Dr. Porter, but every journey starts with one step and we thought this was the most important step.

Ten years after the project began, a review was conducted of progress to date. (Exhibit 400) Of the three reasons given internally for the project, none dealt directly with the concept of not harming the smoker.

Reason #1: Consumers want it.
Governments, anti's and media have promoted all kinds of statistics talking about chemical components of tobacco combustion creating a consumer demand for a product with less of these undesirable[s]

Reason #2: To beat the competition.
The first one to do it right will therefore impact the industry drastically.

Reason #3: To not be caught unprepared for regulations.
The time table would be determined for us, and lack of preparation could result in having to launch a sub standard product.

Making nicotine more powerful

The plaintiff lawyers have now adopted the pattern 'switching-up' their team in the last part of any witness examination. At lunch time, André Lespérance took over, and brought his gentle approach to the subject of smoke pH and free nicotine.

It was a subject that needed a second airing, for earlier Dr. Porter had  thrown dust on the issue, saying that measuring pH in tobacco smoke was controversial and suggesting it was only done in response to government demands. He had also earlier testified that free nicotine was an undesirable characteristic of tobacco smoke as it made cigarettes seem too strong and resulted in smokers not inhaling as deeply (giving a slower nicotine delivery).

Mr. Lespérance began by asking for an explanation of pH numbers. Dr. Porter began unhelpfully It's the inverse of the log to the base 10 of ... Mr. Lespérance tried again. What would a marketing guy answer? 

Dr. Porter gave a more lawyer-friendly explanation, pointing out that 7 was a neutral solution, and that anything above that was alkaline, and anything below was acidic.

With a clearer understanding of pH numbers in the court, Mr. Lespérance returned to the subject of free-base nicotine, and how that was generated by changing the pH level of smoke. He showed Dr. Porter a  memo written in 1980 by his co-worker (Exhibit 377 A) that discussed Imperial Tobacco's attempts to use alkaline substances in filters to increase the pH. The experiment showed that alkaline filters increased the amount of nicotine in the smoke in ways that suggested higher levels of free nicotine.

Justice Riordan asked the witness: What is the practical effect for the smoker of increasing the alkalinity? Dr. Porter replied: More impact, more irritation - the sensation of a stronger smoke and nicotine will be higher.

Now the value of pH was made clearer to the court.

Okay, so when is epidemiologic evidence acceptable and when is it not?

In the closing part of his testimony, Dr. Porter was asked about his beliefs about the harmfulness of cigarette smoking.  Earlier he had talked openly about carcinogenic, mutagenic and toxic substances in smoke, but when the questions focused on whether cigarettes actually caused cancer, his answers gravitated to the company position.

He wanted to clarify his position, he said. It wasn't enough to have risk factors established, he said, he couldn't agree that there was a causal relationship. As a scientist I have to know the mechanism by which it acts.

Are you saying that it is impossible to conclude scientifically today that smoking causes any disease? 
I  personally don’t know. As a scientist I can't say yes for sure that is it. We don't know which carcinogens in smoke are responsible for cancer, we can't conclude that.

So when you see on cigarette packages to day cigarettes cause cancer, do you agree?
It may do. I don’t personally know. 

Later, under questioning by Imperial Tobacco's lawyer (Deborah Glendinning), he appealed to the need for epidemiology before knowing whether the reductions of toxins in cigarette smoke would actually make cigarettes less harmful.

The company line is hard to forget

On another key issue in the trial - the marketing of an addictive product - Dr. Porter also shaped his responses to align with statements by his former colleagues that 'addiction' is an issue of semantics more than one of brain-chemistry.

Do you agree that smokers are addicted?
It depends on the definition of addiction. When I started smoking, the Surgeon General's report said it was a habit. Twenty years later it said it was an addiciton. I’ll go with whatever the definition was.

When you were at ITL, what were your views?
My views were that I enjoyed smoking and it was hard to give up.

Informing the public

The position of ITL former employees and lawyers continues to suggest that their private communications with government departments satisfies any obligations they may have had to provide information to their customers.

On Wednesday, Dr. Porter had been shown an early (1959) study by BAT which found that the closer a cigarette was smoked to the filter, the greater the amount of  3,4 Benzpyrene was produced. (Exhibit 346) He agreed with the findings - but did smokers know that they inhaled more cancer-causing chemicals if they smoked to the butt?

Do you know if ITL ever told that to its customers?
It published this particular analytical method in one of the tobacco chemists meetings - as far as I remember - in the 60s.  It's call the Tobacco Chemists Research Conference. It's an annual conference that tobacco chemists go to and talk about their work, and it's open to the public.

Do you know if they ever directly informed their customers in any other way?
I don't know. They certainly informed Agriculture Canada because they were at the meeting.

Why Dr. Porter would know the participants' list at a conference that took place while he was a high school student remains a mystery. ITL lawyer Deborah Glendinning did, however, provide a copy of the conference notes from 1963, showing that a John Anderson from Agriculture Canada had attended.  (Exhibit 367A - not yet available).

Under questioning by Ms. Glendinning, Mr. Porter said that Health Canada had regularly been briefed on its research efforts.

Was there a regular dialogue between Imperial Tobacco and Health Canada and Agriculture Canada? Were they kept generally advised on ITL's attempts [to reduce toxins in cigarettes]
Oh yes. Absolutely.

Was this information flow fairly regular?

And has Health Canada been briefed on Project Day?
Several times.

Was Health Canada aware of efforts of Imperial Tobacco to reduce Tobacco Specific Nitrosamines?
Yes, they were.

With respect to the reductions achieved, has health Canada ever accepted this as being as safer?
Not to my knowledge.

There you have it. If you are a smoker and want to know more about the safety of the products you buy, you only have to register at the Tobacco Science Research Conference, or lobby to have the trade-secret provisions of the Access to Information Law rescinded.

Only to return ...

In the end, Dr. Porter's testimony did not finish today.  By the time the industry lawyers had conducted their short cross-examination (during which he affirmed that Canadian cigarettes had no additives, that no elastic cigarettes had been put on the market, and that a low tar cigarette could not be 'over-smoked' to give higher deliveries than its parent brand), it was nearing 5 o'clock.  The lawyer for the federal government, Mr. Maurice Regnier, said that he would not be able to complete his questions in a few minutes, and Dr. Porter was scheduled to return on June 11th.

The court does not sit on Fridays.  On Monday June 4th, the current president of Imperial Tobacco, Marie Polet, will appear.  This will be one of her first public appearances in Canada since her appointment to the president's office of Canada's largest tobacco company last July.

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.