Thursday, 30 August 2012

Day 50: Adieu, Monsieur Ricard

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

Wednesday was the seventh and last day that Mr. Ed Ricard testified at the class action trial where $27 billion is being demanded from tobacco companies in compensation for the addiction and lung disease experienced by  Quebec smokers.

Ed Ricard has been a major witness for Imperial Tobacco, both in this trial and in other litigation that his former employer has been involved with. It is not surprising that the plaintiffs chose to schedule him as they wind up this stage of their case against Canada's largest tobacco company - attacks on his credibility flow automatically to the credibility of the company who chose him as their spokesperson. Yet the day was full of surprises ...

Selling cigarettes to underachieving, live-for-the-moment, self-indulgent youth. 

Yesterday afternoon, Mr. Johnston had introduced documents that traced a partnership with Imperial Tobacco, Labbatt's Brewery and the marketing firm, the Creative Research Group, to study the lifestyle attitudes of young Canadians and to figure out what "turns them on" (exhibit 292-87).

In the first wave of this research in 1987 the analysts divided Canadian young people into psycho-graphic groups. The group of great interest to the company, representing about one-fourth of this population was named after weekend-lovers - TGIF (Thank God It's Friday).

"The largest single group is the Underachievers or, as we prefer to call then, The T.G.I.F. group. This segment is rooted in the present. They live for the moment and tend to be self-indulgent." ... "They are the most prominent supporters of smoking." (Exhibit 520-cry27).

A few weeks later, the market researchers suggested how this information could be used to design brands that would appeal to those young people most likely to smoke. (A Review of ITL Brand Strategies - Exhibit 520-cry32520-cry32A).

Player's, too, provides highly relevant options to its intended audience. The recommendation is that perhaps an even stronger association with outdoors, social joie de vivre would be beneficial. The T.G.I.F. group is singled out as having most potential in characterizing the trademark .

Mr. Ricard has repeatedly testified that only adult smokers were targetted by the company's market research. This is consistent with the distinction in the survey report (Exhibit 520-cry30) between the general questions that were asked of respondents as young as 13 and the "custom" section on smoking which  "focusses exclusively on smokers aged 18 years or older." The Review on Brand Strategies similarly  claimed to only use data from those over 18.

Fake ID: for under-age smokers AND the companies that sell to them

Bruce Johnson set out to show that the recommendations on tweaking marketing to better reach the TGIF group were in fact based on an analysis of those as young as 13 years of age.

Through his questions to Mr. Ricard, he methodically took the court through the many ways in which the findings on 13-24 year old smokers and non-smokers were identical to those presented in the report that was said to be exclusively on 18-24 year smokers. 

By the end of these questions, he left a solid impression that Imperial Tobacco's research looked like it was excluding results from underage participants, while it was actually including them in the analysis.

Research reports on 13-24 year olds (left) and
18-24 year olds (right) with suspiciously identical values. 

Mr. Johnston offered a new theory to the witness: "Isn’t the language used meant to give the impression that you are looking at 18 year olds, when you are really looking at 13 year olds?"  

Absolutely not! replied Mr. Ricard. But the pounding his credibility had taken during the week made his answer sound as feeble as the documents made it look.  It was a Perry Mason moment.

More research on children, but no documents on lowering price

After this moment of drama, more mundane issues were brought forward. The first was the introduction of several marketing documents, including some on young Canadians that were not mentioned in either of the constitutional challenges to advertising bans. (In a few weeks, after some formalities have been observed, these will be made public and discussed further on this blog.)

One area where the plaintiffs have been unable to make ground is the role of Imperial Tobacco in increasing smoking by reducing the price of cigarettes (such as by feeding the illicit market of untaxed cigarettes). As he had earlier, Judge Riordan refused to permit evidence of Imperial Tobacco's acknowledgement of the power of pricing to influence youth smoking. Like the now-forbidden topic of second-hand smoke, this is a big part of the story of tobacco industry contribution to disease that may never be included in this trial.

The cross examination

As lunch-time approached, Deborah Glendinning stepped forward to give Mr. Ricard the opportunity to put a different light on some of the issues covered during his direct examination. She encouraged him to remember that Imperial Tobacco had decided against taking up some ideas from the Viking research that they could actively resist anti-tobacco attitudes. She asked whether he had ever met Mme Polet (the current president of Imperial Tobacco), whose testimony about the shutting down of the research branch had been in sharp contrast to his own and she tried (unsuccessfully) to offer him the opportunity to explain how Mme Polet had been mistaken.

She scored an "own goal" however when she tried to do damage control on Bruce Johnston's suggestion that research on youth was mislabelled a research on smokers of 'legal age'.  By opening the topic she allowed Mr. Johnston to repeat his points, and in the squabble over objections between the two lawyers, she snapped "The documents speak for themselves." The courtroom went silent -- ITL's lawyer had confirmed the very point the plaintiff was trying to make.

As if that was not enough ....

Justice Riordan had clearly expected that this witness would leave by lunch, and looked surprised (and not pleased) when Maurice Regnier informed the court that his questions for the witness would go into the afternoon.

The federal government has kept a low profile in this case, presumably because to do otherwise would threaten their real objective, which is to be dismissed from the case altogether (a Court of Appeal ruling on their release is pending). 

But Mr. Ricard, unlike other Imperial Tobacco witnesses, has refused to concede that the federal government had no part in the actions of the company with respect to warning their clients. His testimony has been firmly aligned with the 'action in warranty' claim made by Imperial Tobacco against the federal government. This was material that Mr. Regnier may have felt he could not leave unchallenged.


Mr. Regnier started by referring to Mr. Ricard's statement last May that the reason his company could not restrict its research to 'legal' smokers and was required to lower the age of its surveys to 15 was because of the need to align their findings with census data. ("We needed a basis on which to establish a representative sample, and that basis is the Canadian census information.  It tells us how many people live in different areas of the country and how many people are in different age and gender groups.  And so we used that information as the basis to establish our representative sample of the Canadian population." - May 9, 2012)

Mr. Regnier displayed library copies of Statistics Canada census information which were broken not into age groups like 15-19 but were by single years of birth. This apparently was new information to Mr. Ricard, who explained that it his information had been provided by their research supplier. "I did not have personal knowledge of how the stats can information was structured." 

"It was hearsay?" Mr. Regnier asked. Hearsay was a new issue in this trial, and Justice Riordan directly asked the witness whether the reason came from personal knowledge or from the supplier. "It came from our supplier."

Requests from government

Mr. Regnier then drew attention to several documents that had been cited by the witness as support for his view that the government was opposed to the companies informing consumers of the harms of smoking. 

Mr. Ricard conceded that there was nothing in Judy Lamarsh's 1963 speech to the House of Commons that referred to an agreement with the industry, nor was there anything in the correspondence from senior health ministry officials. And as for the CTMC manual that he had cited (exhibit 20003), it turns out that Mr. Ricard had no personal knowledge of any government involvement in its development. 

To the contrary, exhibits filed by Mr. Regnier today showed the federal government expressing regret at not being involved in the development of the CTMC voluntary code, and asking the companies to develop means of informing smokers of "least harmful" ways of smoking. (Exhibit 500013 is not yet available).

Repeated objections by industry lawyers over these new documents blocked Mr. Regnier's ability to push Mr. Ricard to agree that the government had asked the companies to do more.  "You've got your proof," said Justice Riordan, "but I maintain the objection" to the question.

“Smoking reduces life expectancy”

Mr. Regnier's last point came in the form of a twenty-year old sleeve to a package of du Maurier cigarettes, taken he said from his 'professional collection.'  

This package, made for export to the United States during the period of contraband 'round-tripping,' was passed around the room (but not too observers at the back of the room!). The warning in English and French seemed to be different than any required in Canada or the US at any time. The bilingual warning warning, "smoking reduces life expectancy" was on the side of the package, but not the front and not in contrasting colours as required after 1989 when this warning formulation was regulated. 

This package took everyone by surprise. "He's pulling that out of his hat" complained RBH lawyer Jean Francois Lehoux. After the dust died down, Mr. Regnier's questions made it clear that Mr. Ricard had no explanation as to why the companies had been able to print this novel warning if they were constrained by an agreement with government, as he had previously testified.

Damage control - round 2

Again, Deborah Glendinning struggled to put her clients' witness under a better light. The session suspended for more than half an hour while her team went to recover a document. With such an unusual and prolonged delay, expectations might have been high. But the companies had no rabbits in their hat -- just a copy of a government report on smoking which used the 15-19 year age category. (This report had nothing to do with the census that Mr. Ricard had referred to, but was based on a Labour Force Survey analagous to Imperial Tobacco's own in-home Monothly Monitor).

"Would this be the kind of survey information that Imperial Tobacco would be basing its age breakdown on?" "Would you agree that the suggestion by Maintre Regnier that we could have done something different is incorrect?"  Mr. Ricard agreed with everything she said.

Before he left, Mr. Ricard was thanked effusively by Judge Riordan for his diligence and patience. Go figure. 

Tomorrow, a new witness will appear. Pierre Leblond who worked in product development for Imperial Tobacco is expected to testify for only one day.

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.