Tuesday, 5 June 2012

Day 37 - Not looking back

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

My role, you know, is not to rewrite the history, my role is more to manage the company going forward.
Marie Polet, President,
Imperial Tobacco Canada Limited
June 4, 2012

Marie Polet's ahistorical testimony about the activities of Imperial Tobacco Canada Ltd and its U.K. parent continued today at the Montreal class action trials against the three multinational tobacco companies operating in Canada.

The recently-arrived president provided similarly murky responses as she had yesterday. Repetition, in this case, was not the soul of persuasion, and the benefit of the doubt that had initially been extended her way  by Justice Riordan seemed to have worn away by close of the day.

As if to highlight the broad impact of BAT's attempts to make a break with the past by restructuring its operations and rotating country managers, plaintiff lawyer Bruce Johnston guided Ms. Polet through many subjects, stopping only briefly at any one topic.

There were many areas of tobacco use in Canada about which Marie Polet seemed to have less knowledge than most others in the room. She had no recollection or knowledge of the 1962 agreement between tobacco companies to not compete on the basis of health claims (Exhibit 154), nor her company's one-time interest in research on the brain waves of 11 year olds who began smoking (Exhibit 412). Nor did she claim familiarity with the implementation of the document destruction policy.  She had very little knowledge of Canadian smoking patterns. She did not know about previous (constitutional) litigation her company had initiated. (Exhibit 75A). She had no recall of the Surgeon General's recent report on preventing tobacco use among young people.

Pat Dunn, Bob Wade, Jean-Louis Mercier, Robert Bexon, Michel Descoteaux, Ed Ricard and others have become familiar names to this trial, etiher through their personal appearances or through the documents they left behind. Marie Polet's profound unfamiliarity with these individuals and their work made BAT's new era at Imperial Tobacco Canada seem not so much a break with the past as a break with reality.

Ms. Polet is the new face of BAT in Canada. Since these lawsuits were filed in 1998 (which is the end point for most of the document disclosure) the company has had to adapt and evolve. It is no longer a publicly traded company in Canada, but a wholly owned subsidiary of a multinational. It has shaped its marketing around new regulatory restrictions (in 1998 there were not yet bans on sponsorship promotion, retail displays, terms like light and mild and there were no requirements for graphic health warnings).

Just as she said, Marie Polet's job is to manage the company going forward.  In that sense, her testimony may be more meaningful to addressing the behaviour of the company today and in the future than in redressing its past behaviour. The lawyers at this trial will not be the only ones who will carefully parse her remarks over the past two days.

Safer? No and yes.

In 1997, BAT summarized its research into safer cigarettes (Exhibit 416) and included in this list its work on "the development of acceptable low tar products". Bruce Johnston used this document as a springboard to question Ms. Polet about current views on safer cigarettes. It would appear that the company is more than ever walking the line between "no claim on safety" and "no admission of specific harm."

When asked about low-tar cigarettes, Ms. Polet said There is no evidence that lower tar cigarettes or indeed any type of cigarettes are in anyway safer than higher tar cigarettes, and then added ambivalently Studies have shown that statistically, smokers who smoke ultra-low tar cigarettes as measured by the ISO methodology actually on average get a lower exposure to smoke than someone who .... smokes higher tar cigarettes.

The company continues to research safer cigarettes, but puts the onus for their acceptance on government.In the countries I know it would be against the law to claim things about our products along the lines of them being safer, she said.

As she had yesterday, Ms. Polet made reference to BAT being transparent about its research, pointing to its purpose-built web-site, www.bat-science.com.  We publicize every bit of work we do, she said.

Work continues on Project Day towards reducing toxins in smoke, she reported, even though the research has been moved to Southampton and the production plant to Switzerland. The trial had previously learned that research documents had been destroyed in Canada, it was only her testimony that revealed that the whole research undertakings had also been dismantled in Canada.

In the meantime, as she put it: We are selling a product which is inherently a risky product – it is a product which can cause serious and sometimes fatally diseases a and is a product that therefore we do want to mange responsibly. As for those who start smoking?  My understanding is that new smokers today are aware of the risk.  I said that a 12 year old person can read [the health warning].

Cause cancer? Yes and no. 

In 1981, Imperial Tobacco's scientist, Robert Gibb, had parsed BAT's proposed public statements on tobacco and health, and identified a problem with the way the company refused to accept epidemiological findings regarding causality. (Exhibit 20). Ms. Polet's responses to questions today suggest that BAT continues to struggle in this way.

Bruce Johnston: Do you know whether BAT ever denied that smoking caused lung cancer?

Deborah Glendinning:  Objection. This was covered at length yesterday. It has been asked and answered. 

Justice Riordan:  She did not give an answer

Bruce Johnston:  Has BAT ever denied that smoking causes lung cancer?

Justice Riordan rarely intervenes with witnesses, but today he too expressed frustration with the witnesses inability to answer directly without qualification.

Justice Riordan:  Has the company ever denied that smoking causes lung cancer?

Marie Polet:  To my knowledge and recollection I don’t believe that the company has denied that there is a link between one and the other. Statistically it does.

Bruce Johnston:  Do you know whether the company has denied that smoking caused lung cancer?

Marie Polet:  Based on statistical evidence, we have not denied it, to my knowledge.

Bruce Johnston: To your knowledge did  BAT ever deny that it cause lung cancer?

Justice Riordan.  She has answered in a qualified way.

Marie Polet: There are two ways of looking at the issue – general causation and specific causation. To to my knowledge, Bat has never denied general causation.  On an individual causation level, we don’t know and BAT says that is when somebody smokes it is not guaranteed, let me put it that way, that this person will get lung cancer. Some people may and some people may not.

An unfortunate echo from the past 

Because there is no record of Ms. Polet's activities in Canada, it is difficult for the plaintiff's to counter any unlikely claims she makes with documents. Bruce Johnston tried - unsuccessfully - to use her involvement in the launch of the Barclay cigarette to contextualize her understanding of marketing 'safer' cigarettes and compensation. (The Barclay cigarette was so compensatible that it caused a rift in the industry - Exhibit 235).

He was, however, successful in using her experience in that exercise to counter her testimony that BAT did not conduct research on young persons. It was in our principles not to talk to someone under age, she had testified. But from the Legacy site, an exchange of memos between her and Benjamin Kemball (who also became a president of Imperial Tobacco for a few years) described research on children as young as 15. (Exhibit 417).

The Court of Appeal says no.

On May 11th, Justice Marie St-Pierre of Quebec's Court of Appeal heard requests from Imperial Tobacco and JTI-Macdonald to appeal decisions of Justice Riordan regarding the admission of evidence. On June 4th, she turned down both requests, saying that it was not appropriate for a higher court intervention in the circumstances.

One  involved Justice Riordan's decision of May 2nd, which has been referred to almost daily during the trial, as Imperial Tobacco lawyers continue to object to the admission of evidence for which an author or recipient is no longer available. The other involved JTI-Macdonald's concerns about decisions to allow certain ITL documents to be filed. Whether it was out of the goodness of its heart or more strategic reasons that JTI-Macdonald volunteered to make an appeal on behalf of Imperial Tobacco has not been explained.

No more questions for Ms. Polet

At four o'clock, Bruce Johnston suddenly stopped his questions. Justice Riordan looked around the room to see if there were any other questions for the witness. Seeing none, he thanked Ms. Polet for her cooperation and invited her to step down.

Veterans of past health campaigns will be interested in the appearance tomorrow of Bill Neville, who headed up the Canadian Tobacco Manufacturers' Council during the development of Canada's first tobacco laws. He is expected to testify for at least two days.

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.