Thursday, 14 June 2012

Day 43 : The man who saw so much (but remembers so little)

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

Thursday, June 14 was Jacques LaRivière's second day of testimony at the Montreal trials of the tobacco class actions, and it is hard to imagine a more uncomfortable witness.

The questions put to him by plaintiff lawyer Philippe Trudel were for the most part quite straightforward (do you remember this document? what did you mean by this word?), and always presented in a cordial and respectful way. Nonetheless, Mr. LaRiviere looked like he felt trapped in a situation where, as in a Monty Python sketch, the wrong answer would send him catapulting into the distance. He paused. He muttered under his breath. He scrabbled through the heavy binders of documents in front of him. By the afternoon, he reverted more often and more quickly to denying any knowledge or memory.

Mr. LaRivière had been scheduled to testify for two days, but by the middle of this second day it was clear that more time was necessary.  When being told at lunch that he should expect to be recalled for a third day, he shook his head violently at the plaintiff's bench. The cross-examination that had been expected today will not happen until next week, or possibly later.

Despite his reticence, the man who managed communications for the Canadian Tobacco Manufacturers Association from 1979 to 1994 provided some of the clearest testimony todate on some of the key issues before the trial.


The first topic raised by Mr. Trudel was the CTMC's position on addiction. Mr. LaRivière explained that the view of the CTMC was that addiction as an inappropriate word, and that persons who had smoked for a very long time were able to stop cold turkey, which is a negation of addiction.  He could not recall any point in time that the CTMC acknowledged that smoking was addictive.

That does not mean that Mr. LaRivière did not work on addiction issues, however. In the run-up to the Surgeon General's 1988 report on the topic, it was Mr. LaRivière's job to send out speaking lines to his tobacco company members  (Exhibit 487) and to help their funded scientist, Verner Knott, participate in ARISE, an international front group for addiction issues (Exhibit 489).

CTMC's youth prevention programs

One of the activities launched by the CTMC during Mr. LaRivière's time was retailer-directed activities at not selling cigarettes to young persons. Yesterday, the trial had learned that the CTMC did not think such programs were very effective, but in the lead up to the passage of Canada's first tobacco laws (C-51 and C-24) wanted to introduce them as a "symbolic" gesture that would give it some control and maybe forestall legislation. (Exhibit 479U).

When the program was set to launch in May of 1988 (Exhibit 497V), the program had settled on the age of 16. Given that Mr. LaRivière had clearly stated that smoking was an adult decision where the meaning of adult was 18 years old, Mr. Trudel wanted to know about this discrepancy.

JR Q. Were the programs and age limits initiated with the understanding to prevent youth smoking for people under the age of 16?
A. That is what I deduce from these statements.

PT Q. How can you reconcile that with the fact that smoking is an adult choice?
A. It was always my belief that adult and 18 went together.

PT Q. If you wanted to prevent youth smoking, wouldn’t you prevent those under the age of consent for informed decisions from smoking?
A. That would seem to be a reasonable statement, yes.

Health Warnings

Under pressure of federal action, and with complaints about the CTMC was reviewing new health warnings, Jacques LaRivière was at the centre of a discussion among tobacco companies about new health warnings. In 1985, he circulated some proposed new warnings and raised the "strategic and tactical" question: Is there agreement that the harshest warning is to be used on billboards, the second harshest in magazines, the third harshest in newspapers-and the mildest on P.O.S. material?

Mr. Trudel wanted to know why it was strategic or tactical to put the harshest warnings on billboards. The witness danced around the question, and Justice Riordan intervened to repeat the question.

Q. Why would the harshest be on billboards. 
A. I don’t recall what the reasoning was

Q. Wouldn’t it be to limit the impact?
Q. Limit the impact of the warnings! By using the harshest warnings on the largest medium!? Billboards are huge!

Q. Do you remember that the warnings on billboards were 4 inches high?
A. No I am not a marketing person
Mr. LaRivière was reminded of a memo he had circulated that contained health warnings in other countries  and asked whether he knew any of the health facts presented in those warnings to be true. No, he did not know that smokers were more likely to have ulcers. No, he did not know that smoking caused hardening of the arteries and coronary occlusion. No, he did not know that smoking while breast-feeding was recommended against. His 1985 memo (Exhibit 491) is a reminder of how far behind European countries Canada was at the time, and his testimony yesterday undermines the industry's suggestion that "everyone knew" the health effects.

Recruiting third parties: economic dependants

One of the CTMC's political and government relations activities was its parliamentary liaison program, the purpose of which, as Mr. LaRivière put it, was increasing knowledge of sitting MPs and MLAs of the tobacco operations in their ridings, highlighting the economic impact, etc.

Again, the industry worked to have its message delivered by third parties -- in this case the growers, factory workers, unions and other economic dependants. But for the industry's script to be delivered, it had to be written down. The script written for these messengers a clear synopsis of the industry's position on key issues. (Exhibit 490, 490A, 490B)

To this day, there is no scientifically-established proof of a causal relationship between some diseases and smoking. ...

Nothing so far proves that passive smoke is dangerous for the healthy non-smoker, although it may be annoying in a poorly-ventilated place.

The CTMC commissioned its own public opinion polls on government policy. One of these, reviewing public views in 1994 on a variety of policy issues was made public today this week. (Exhibits 495, 496, 479 L)

Recruiting third parties: the Smokers' Freedom Society

One of the first issues raised with the first witness in this trial (Mr. Descoteaux) concerned the origins of the Smokers' Freedom Society, and its independence from the industry.

The first president of the society, Mr. Michel Bédard, testified earlier that the idea of the project came from his discussions with Pierre Lemieux. Mr. Descoteaux also gave the impression that the society was at least somewhat spontaneous in its development. The distinction was particularly important in the role the society played in presenting an independent rebuttal to science (of addiction) and public policy (economic impact of smoking).

The evidence from today suggest that the whole project was dreamt up at the CTMC, and that Mr. Bédard was one among other candidates for the job. Minutes from CTMC public affairs meetings (Exhibit 479K, 479L, 479O, 479P)

Recruiting Third Parties: Advertisers
In the 1980s, with attitudes against tobacco promotions hardening, the CTMC worked to put up an advertising front against such measures. Their core message against ad bans had been presented in a brochure (Exhibit 497). But Jacques LaRiviere and Keith McKerracher (of the Institute of Canadian Advertisers) were dissatisfied. The style of intervention adopted thus far has been ineffective. It is repetitive (boring) and has no emotional appeal. (Exhibit 493).

McKerracher, who supported the tobacco industry's position vigorously during the 1980s, had a firm message for the CTMC if it cared whether advertising is banned. The tobacco industry had to demonstrate its "commitment and coordination" before the advertising industry would "invest time or money".

Eventually, a coalition was built with advertisers and the sponsored events. (Exhibit 498).

Preventing smoking bans in Quebec

The trial has mostly heard of attempts to forestall federal regulation, or relations between the tobacco companies and the federal government.  The careful watch on and effective lobbying of the Quebec government surfaced today.

In February 1981, the "first few meetings with Quebec civil servants" regarding Quebec's anti-tobacco policy were held. (Exhibit 505).  In a letter to Mr. LaRivière, Mr. Descoteaux discerns a fault line between the economic ministries and the social ministries -- he also finds hope in the decision of Minister Lise Payette to step down. She remains ultimately responsible for the progression of the anti-tobacco proposed policy towards cabinet approval, and her decision to quit politics appears certain to undermine her "weight" in Cabinet.

With a new minister on the file in June of 1981, Jacques LaRivière reports on attempts to get a meeting and that tobacco issues would not be considered that spring. (Exhibit 506). In June the next year, a meeting was held with the Minister of the Environment (Marcel Léger). The Minister had a bill in mind (on public smoking), but was also interested in non-legislated approaches, like a 'courtesy' campaign. (Exhibit 507).

The next year, a new Minister, seemed less of a threat.
Mr. Ouellette, a cigarette smoker, is affable and pragmatic. He made what was perhaps the most significant statement very early during the conversation when he said that «while the civil servants were very advanced in the drafting of a Bill, I have just begun the process of reflexion and consultation and we are still a long way from legislation.» (Exhibit 508).

Within a few months, the proposed bill on smoking bans was apparently dead. "It was reported that Environment Minister Ouellette indicated there is no plan to legislate this. It is not a priority for the Quebec government." (Exhibit 479G)

A rich documentary resource

The testimony of these CTMC officials is quite a rarity in Canadian public affairs. The CTMC had not been involved in either of the constitutional challenges against the federal tobacco laws, and therefore had not previously been exposed to document discovery or examination in court.

The extensive documents from the CTMC that have been produced in this trial provide a rich insight into how business corporations cooperate with each other with significant creativity in order to defeat regulations aimed protecting the public from the negative consequences of their enterprise.

On Thursday, the exhibit numbers hit the "500" mark, and a little cheer was heard in the court room.  "Let's go home!" someone (on the defence side) suggested. In fact, more than 800 exhibits have been entered to date. Lots of summer reading!

Next week, Mr. Lydon Barnes will testify. He was outside counsel to Imperial Tobacco at the time of document destruction.  Also scheduled to re-appear are Dr. Porter, Mr. Woods and, possibly, Jacques Rivière. 

Also next week is the return of blogger Michael DeRosenroll. Welcome back!

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:
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