Tuesday, 28 August 2012

Day 49: Conflicting ITL testimony

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

This morning Bruce Johnston resumed his questioning of Imperial Tobacco's main witness, Ed Ricard.  Again the witness faced a barrage on his credibility and the credibility of the company where he had spent his 28 year career and where his father was once the boss.

Unlike the pugilism of the initial questions yesterday afternoon, Bruce Johnston today adopted a more subdued questioning style, offering a patient and detailed comparison of Mr. Ricard's testimony against the evidence offered by other witnesses or documents.

For his part, Mr. Ricard also changed the style in which he answered. While refusing all invitations to change his testimony or have his memory refreshed, he less frequently responded with glib non-answers.

The result was a compact farewell tour of the issues as expressed by Mr. Ricard.  This concentrated review of key issues, and often dramatic conflict among witness testimony made for one of the richest audience experiences of the trial to date. (The international tobacco control experts who took a break from the World Cancer Congress to visit the trial today may have left with a rosy view of the viewer friendliness of these proceedings).

Common law duty to warn 

Bruce Johnston again started by asking Mr. Ricard about the alleged agreement between the government of Canada and Imperial Tobacco, and the witness' view that the company was prevented from warning its customers or providing them with health information about their products.

He showed Mr. Ricard the 1988 Tobacco Products Control Act, recalling previous occasions when the witness had presented the same law to different courts. He drew attention to section 9(3) which clarified that compulsory health warnings did not replace any other legal obligations of the industry.

Tobacco Products Control Act, 1988, s. 9(3)
Unlike Mr. Mercier, who had seen the same section on May 7th, Mr. Ricard did not acknowledge that there were no real legal impediments. To the contrary, he said, other parts of the law restricted anything but "name, brand name, trade marks," tax stamps and consumer packaging information on packages. Mr. Ricard was prepared with a counter-explanation.
Our interpretation of the law was that the messages needed to appear on the packs as identified in the legislation. .... I maintain our testimony. 

Nor would Mr. Ricard offer any suggestion of why Mr. Mercier, who was his president at the time the law was passed, would have had a different view.

Marketing safer, marketing lighter. 

In the later part of his work with Imperial Tobacco (he retired at the age of 50 in February 2011), Mr. Ricard headed up the company's harm reduction project. Mr. Johnston wanted to know how the company planned to market these products if they were banned from talking about risks of smoking. Upon a successful development of a safer cigarette you would then be forbidden from telling people about it? he asked.

Mr. Ricard explained their approach "If we had a product that was scientifically supportable that it was different on the market one of the major challenges was how to communicate that to the public. One of the principles in the department was that if we ever got to that point we would do it with the government." 

This approach was never put to the test. Mr. Ricard testified that the harm reduction program was 'reorganized' in 2010, and that "the idea of bringing other [non combustible] products to the market was dropped." At the same time much of the work on combustible products was moved to BAT headquarters in the UK.

Yet Imperial Tobacco continues to manufacture and sell lower-delivery products and Mr. Johnston pointed out that "several witnesses, including yourself, testified that you did believe that light delivery cigarettes posed less of a risk than other products."  

After pushing Mr. Ricard to elaborate on why he thought light cigarettes were a "good thing" and drawing out his belief that they were associated with a "statistically reduced risk" of smoking, Mr. Johnston contrasted this with the testimony of  Imperial Tobacco president, Marie Polet.  On June 5th Mme Polet testified that she did not think there were studies that showed that lower delivery brands are associated with a lesser degree of illness in smokers.

Again, Mr. Ricard could not explain the discrepancy in views.

Contradicting the boss - again

Not only did Imperial Tobacco's president and Imperial Tobacco's witness disagree about the existence of certain scientific evidence, they even disagreed about the existence of scientists in the company.

Mr. Ricard testified again today of his work until 2010 on a harm reduction project involving 5 scientists. (Although he could not remember, despite repeated questions, in which scientific fields these subordinates were trained, he could remember that the goal to reduce emission levels of around 40 toxic constituents in cigarette smoke was based on scientific advice on what was achievable). Yet the president of the company had told the court that the scientific labs were dismantled "long before" her arrival in 2011.

Did Mr. Ricard think Mme Polet was wrong? We'll never know. Justice Riordan maintained an objection of Deborah Glendinning to the question.

Marketing to Youth

Mr. Ricard repeatedly re-affirmed his view that Imperial Tobacco never targetted its marketing to persons under 18. Yet ITL spokesperson, Michel Descoteaux had written to parliamentarian Russell Williams in 1998 (exhibit 65) to the effect that Imperial Tobacco had indeed targeted 16-19 year olds in the years when the "legal age" to purchase cigarettes was 16.

"Mr. Descoteaux never worked in marketing, never had anything to do with target markets," said Mr. Ricard dismissively.

Media plans 1981 - Exhibit 300
Yet those who worked in marketing had apparently seen young smokers as targets, according to documents filed earlier in court, such as plans for advertising expenditures (Exhibit 300).

Oh no, explained Mr. Ricard, this didn't suggest that they were planning to spend more advertising to young males -- merely that they were using Print Measurement Bureau statistics to ensure that they did not market in print media with less than an 85% adult readership. (Say what?!)

New documents were filed that gave Mr. Ricard further opportunities to explain away the repeated and consistent emphasis on a youthful image for its brands. Some of these were subject to rulings by Justice Riordan and also the Court of Appeal.

Imperial Tobacco went to some lengths to try to keep these 8 documents off the public record.  The four that are now available are marketing documents from the late 1980s (Exhibits 292-82 292 - 88292 - 88A) and a 600+ page summary of the holdings of the Imperial Tobacco marketing library (Exhibit 520).

Another marketing documents (Exhibit 292-87, a 1986 consumer research planning summary) sheds further light on the "Youth target" research which was much discussed during trial of the federal Tobacco Act. It turns out that the project was dreamed up with Labatt Breweries (the company to which ITL's former marketing head, Tony Kalhok, had moved three years earlier).

Currently, there exists no on-going research available to Imperial Tobacco that looks specifically at youth lifestyles' values and attitudes. In an attempt to fill this gap, we have joined forces with Labatt Breweries and Creative Research to develop a research methodology whose major objective would be to identify meaningful lifestyle parameters of young Canadians (what turns them on). 

It is not known whether this annual survey of children as young as 13 was ever successfully syndicated to any other companies, or whether it continued to "fill the gap" for the shared interest and budgets of beer and tobacco companies.

Tax evasion? surely not ... just a labelling issue.

A month from today, the Quebec Court of Appeal will consider a request from the three defendant tobacco companies for a review of Judge Riordan's decisions at the outset of the trial that he would allow questions on the participation of the companies in contraband cigarette sales. Until then, the trial has been treating the subject like thin ice.

Bruce Johnston tested that ice today, as he pushed on the credibility of Ed Ricard and Imperial Tobacco. He began by asking Mr. Ricard whether Imperial Tobacco voluntarily participated in the round-tripping of cigarettes through the duty-free market. Mr. Ricard said the company knew it was happening, but did not actively participate.

"Did you know that imperial tobacco pleaded guilty to the criminal charge?" Mr. Johnston asked. Dismissing the objection of Deborah Glendinning, the judge allowed the question.

"I am not aware that Imperial Tobacco pleaded guilty to a criminal charge, the witness replied. "My understanding it was a contravention of labeling product - it was improper labeling of products."

This was the cue for Bruce Johnston to present Imperial Tobacco's pleading (a document not yet made available by federal or provincial governments that negotiated the plea bargain with the company). The French text, flashed on the screens in the courtroom more quickly than it could be fully transcribed, admitted that between the first of January, 1989 and February 28, 1994 the company had possession of and had assisted individuals in selling tobacco that did not have a tax stamp and that this criminal offence under the Excise Tax act was admitted. (The plea was entered as an exhibit, but is under reserve and not available pending the Appeal Court decision). Not having a tax stamp is one way to creatively downplay the seriousness of tax evasion as a labelling infraction.

The ice was too thin, however, for Mr. Johnston to line up another shot at the credibility of Imperial Tobacco on this issue. He tried to introduce into the trial record comments from another Quebec Superior Court justice, André Denis (who ruled in 2002 that The industry was a willing accomplice of black-market cigarette smugglers), but Justice Riordan would have none of it. Bruce Johnston's plea that the ruling went to the credibility of the defendants fell on apparently deaf ears.

Whom to believe?

By the end of the day it felt like we had all attended a refresher course on many of the key trial issues where  the evidence doesn't add up. Somebody has to have it wrong.

Speaking of having it wrong, I misidentified the counsel representing the Canadian Tobacco Manufacturers Council in an early post yesterday. My apologies to Ms. Genevieve Gagnon and also to the other Ms. Gagnon.

Tomorrow, Wednesday August 29, Mr. Ricard will make what is expected to be his last appearance. In the afternoon, a former librarian for Imperial Tobacco, Ms. Rita Ayoun, will testify.

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.