Day 63: Smooth Character

See note at the end of this post for information on accessing documents

Over the past few weeks, participants and onlookers to the Quebec tobacco class action suits have been introduced to some of the men who have presided over the manufacture of Export A cigarettes. 

The first two presidents were an autocratic father, Walter Stewart, and his hapless son, David. These men ran the family-owned Macdonald Tobacco Company until the early 1970s when it was purchased by RJR International. They were introduced posthumously, through a colourful memoir by a former employee, the 92 year old Peter Gage.

The third was the current president of JTI-Macdonald, and Regional president of the Americas for Japan Tobacco International, the very polished and carefully-spoken Mr. Michel Poirier, who testified only last week. (RJR International was acquired by JTI at the turn of this century).

Today the trial met a fourth president, one of the many executives rotated through the company while it was owned by RJR-International.

His name is Peter J. Hoult, and he worked at RJR-Macdonald for a total of seven years in the decade between 1979 and 1988. His tour of duty in Canada was a short part of a career that saw him work for other RJR companies in Geneva, in Hong Kong and in the United States, where he still lives.

This is not Mr. Hoult's first time testifying in a Montreal court. He was a witness during the tobacco industry's constitutional challenge to the Tobacco Products Control Act (C-51), and his testimony from those trials is available on the Legacy site.

1989
After he left Canada,
Mr. Hoult oversaw RJR's
marketing of Joe Camel. 

Mr. Hoult has not worked in the tobacco business for a number of years. He was forcibly retired in the after-burn of the take-over of the company immortalized in Barbarians at the Gate. Like the smooth character, Joe Camel, whose ad campaigns he once oversaw, Mr. Hoult is now a piece of tobacco marketing history.

By his looks alone, Mr. Holt would be easy to miss, with the nondescript appearance many prosperous men of his age (68). But he has a distinctive voice, with a melodious professional-class British accent that has endured more than 40 years in the new world.

"Let the witness answer the questions" 

Mr. Hoult uses his voice well - and at length. When Philippe Trudel, the plaintiff lawyer asking questions today, made attempts to shorten or refocus the answers, he was corrected by Justice Riordan. Was that the sound of yet another witness schedule flying out the window?

It's not tobacco that causes disease, it's less rigorous statistics. 

When asked about giving smokers more detailed warnings than those in the voluntary code, Mr. Hoult replied that since over 80% of smokers believed that smoking caused cancer, "any further message would have been redundant. ... what more could we do?"  He maintains that the science on smoking and disease is "by no means as black and white as certain advocates would state" and suggests that the widespread acceptance of causality may be because “statistics are a little less rigorous today.”

Science as a Public Relations

Mr. Hoult confirmed that the company had done no original research into the health effects of health implications of its products. Nor had it invested any more than a "derisory" amount in outside research in Canada. He pooh-poohed the scientific value of the research that was funded by the CTMC.

"If it wouldn't make any difference, why spend any money?" Mr. Trudel asked. Mr. Hoult rattled off the answers: "it was clearly expected, it wouldn’t do harm, we could afford it --  and it was possibly good PR." 

Do as the lawyers say and purge the records of references to youth

In the early afternoon, Mr. Trudel began to show the witness documents from his era at RJR-Macdonald. The first chronicle the efforts of Mr. Hoult to follow the directions of the RJR-International president based in Winston Salem and "purge our files of references to ages below 18 years." (Exhibit 656A, 656)  The enforcers on the policy were the company's lawyers, Sam Witt III in the U.S. and Guy-Paul Massicotte in Canada (Exhibit 656B).

But that doesn't mean you have to stop researching them

RJR-Macdonald nonetheless continued to receive information on "targeting teens." (Exhibit 657). They purchased custom reports on the same "Youth Target 1987" study that was presented earlier in the trial in the version commissioned by Imperial Tobacco (as exhibits 520-CRY27). The study in both iterations examined the attitudes, lifestyles and tobacco practices of Canadians aged 15 to 24.

[The court had seen previous testimony that Imperial Tobacco, as an original architect of the study, thought that Labatt's and Imperial, would retain "exclusivity in their respective industries" (Exhibit 292-87). It's not clear whether the two tobacco companies knew they were paying for near-identical "proprietory" research.]

Near identical studies on youth sold to
ITL (exhibit CRY-527) and RJRMI (Exhibit 658A)

It was about a month ago that the same study had been shown to Mr. Ed Ricard and plaintiff lawyer, Bruce Johnston, had made the compelling suggestion that Imperial Tobacco had also purged references to children under 18 from its research reports, but had continued to include data on younger age groups in their studies.

Mr. Hoult, likely unaware that he was effectively testifying against his one-time competitor, explained that adjusting numbers as Ed Ricard had said was done with the studies would be "enormously expensive" and would "fly in the face" of the omnibus approach.

His own company had put a new label ("Young Adults") on the report before circulating it internally. (Exhibit 658C)

Mr. Hoult's testimony will continue on Monday. My bet is that one more day won't be enough of this witness....

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.

Day 62: "Trying to put it into perspective"

See note on accessing documents at the end of this post.

After a testimony almost twice as long as originally planned, Mr. Howie ended his fourth day at the Montreal tobacco class action trials today.

Over the past week, plaintiff lawyer André Lespérance has entered more than 60 exhibits pulled from the scientific archives of RJR-Macdonald. On most of these, Mr. Howie was asked for his knowledge about the events described in them, or about the findings of other researchers. (There was very little of his own research work presented, nor has much survived on the Legacy web-site. Even in the 'secret science' of the tobacco industry, he appears not to have been a very central researcher.)

The reason given for the additional days of testimony was that additional time was needed to introduce all the documents that the plaintiff's wanted as evidence for their case. Certainly Mr. Howie talked very  slo-o-o-wly and frequently offered explanations as he was "trying to put it into perspective."

But the extra days with the witness also allowed his testimony to wear a little thin. His key messages were something like this:

- His company was following the suggestions of the federal government and the scientific community in reducing the tar levels in cigarettes and in trying to increase the amount of nicotine relative to tar.
- The company's hands were tied with respect to further modifications to make cigarettes safer because smokers want to inhale both tar and nicotine.
-Federal government research that resulted in new varieties of tobacco plants made it easier to increase the amount of nicotine compared to tar, and the companies also found other ways of doing it.
-As a bench scientist he knew nothing about the policies of the company with respect to smoking and health, and has virtually no recall of any events that make the company look sketchy.

The witness reminded me at times of plumbers that have visited my house and have blamed their difficulties on the work of other tradesman. "This study here is flawed from the start...." he said of an internal report on smoker compensation.  "A prudent toxicologist should say nothing until he knows the fact" he said to dismiss a caution that adding sorbitol to cigarettes had the 'potential' to create cancer-causing benzo-a-pyrene.

Mr. Howie's memory was clear on points which sustained his key messages, but he had little recollection of whole programs of work that were not supportive to his employer, even though his name was attached to  memos and reports on those activities.  He was categoric that no cigarettes sold had ever been made with ammoniated tobacco sheet. But he could not remember the name of the AJAX factory where the tobacco sheet was made, nor details of any of the studies on the product that were conducted under his leadership in the science department.

The documents introduced today by Mr. Lespérance provide examples of several ways in which RJR-Macdonald wanted to succeeded in manipulating the nicotine levels in cigarettes:

* RJR-Macdonald science head (Derick Crawford) advised his president (RC Shropshire) on several lways to "increase nicotine yields whilst maintaining tar yields" (1976, Exhibit  644, 644B).

* When under pressure from Health Canada, the company worked on an industry consensus to use only additives approved by the German or UK tobacco authorities. This consensus included two big loopholes -- additives to paper didn't have to be on the list, and neither did "natural extracts". (July 1983, Exhibit 642)

* RJR laboratories in Winston Salem conducted experiments on how to increase nicotine relative to tar, and reported three successful ways of doing so, including through the use of additives.  (1977, Exhibit  645)

* RJR-Macdonald's head of research reported that three of the company's brands were designed to deliver higher nicotine relative to tar (Vantage, Export A Lights and Cavalier). He knew that Philip Morris used ammoniation to boost nicotine, and laments that this is more difficult to do in Canadian cigarettes. (1978, Exhibit 647)

* RJR-Macdonald experimented repeatedly with using ammoniation to increase pH and thus increase 'free nicotine'). (1979-1984, Exhibit 648,  648A,  648B,  648C)

* RJR-Macdonald determined that paper additives would change the delivery of cigarettes (1982, Exhibit  649)

* The papers used in RJR-Macdonald cigarettes had ammonium phosphate added to them (Exhibit  641, 641A).

* RJR-Macdonald sought to increase the amount of nicotine in the tobacco used in its cigarettes (1983, Exhibit  650)

The cross examination

Mid-afternoon, Mr. Lespérance signalled that he had no more questions for the witness, and the opportunity for questions was open to others.

The first round went to the federal government lawyer, Maurice Regnier.

Mr. Howie had given long explanations of how the federal government had requested the companies to reduce the overall tar levels in cigarettes. Mr. Regnier asked Mr. Howie to confirm a fact that had not been volunteered to the court - that the federal government had also requested the industry to reduce levels of nicotine.

Mr. Howie was also asked to look at Mr. Regnier's calculations on the range of tar/nicotine ratios in Canadian cigarettes sold in the late 1980s (based on Exhibit 50017).
"If most of these cigarettes were manufactured from the same tobacco how can we see such differences in the tar to nicotine ratio? asked Mr. Regnier.
"The differences in these brands is being brought about by product development techniques, not by the tobacco," said Mr. Howie.
Point made. It was the industry, not the government, that made nicotine levels go up.

The next round went to Kevin LaRoche, JTI-Macdonald's counsel. He showed Mr. Howie a press release issued by the CTMC in 1994, after the use of additives had become a hot media topic in the United States (Exhibit 40017, also on Legacy).  Were any of the compounds used associated with ammoniation? "No" said Mr. Howie.

Mr. LaRoche also turned to yesterday's damaging testimony that showed Mr. Howie proposing a  12 mg label on a cigarette that gave a 13 mg tar result to the smoking machine (Exhibit 629). JTI's lawyer invited  Mr. Howie to describe these test results as highly variable, and then asked what tolerance in measurement the government regulations provided for. "Plus or minus 1 mg" answered Mr. Howie.


(Mr. LaRoche did not ask why the company downplayed perceived risk by using a 12 mg label for consumers instead of telling smokers that their cigarettes might give as much as 14 mgs of tar).

Ar this point, the cross examination got a little giddy, reminding me of the final round of a late-night card game as the courtroom players picked up the pace and extemporized. There are few moments in this trial that are not on a set game plan, and everyone seemed to enjoy the sport of a faster play.


Mr. Potter amusingly returned to the list of tar and nicotine levels that Mr. Regnier had produced and drew attention to the highest value on the list - Twenth-one milligrams. In his customary dramatic way - arms in the air - Mr. Potter asked what the highest value had been before the industry worked so hard to reduce tar levels - clearly expecting that this would be a much higher number.

"Eighteen milligrams" answered Mr. Howe. No one laughed openly at this answer that suggested the opposite of Mr. Potter's point - nor did anyone point out that Mr. Potter was on the wrong column, and had cited results for fine-cut tobacco.

In the last question Mr. Lespérance asked Mr. Howie to explain the wording in the CTMC press release that had been introduced by JTI's lawyer. What was meant  by the statement that reconstituted to tobacco had "naturally occurring" compounds added to it? Mr. Howie explained that an product that existed in nature would be considered naturally occurring in this context.

And as for the statement that "None of the manufacturers adds flavourants to tobacco and paper"? Well, the substances that were added weren't flavourants - they were there for other reasons.

Wasn't it misleading to suggest that there were no additives by saying there were no flavourants? asked Mr. Lespérance. "I don't think so" said Mr. Howie.

The whole truth is not a requirement for press releases, after all.

Tomorrow, a former marketing executive and president of RJR-Macdonald, Mr. Peter Hoult, 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

Day 61: The revisionist scientist

See note on accessing documents at the end of this post.

Monday's session at the trial of the Quebec class action suits against tobacco companies ended on a cliff-hanger. Would Justice Riordan stand by his decision earlier in the day to cut off the plaintiff's ability to produce evidence on diseases other than addiction and the four respiratory system diseases identified in their suits?

He had left the court without indicating how he would rule on the plaintiff's plea for reconsideration of this unexpected ruling. When the court reconvened this morning, his decision was top of everyone's mind.

Bootlegged on the contraband decision

Justice Riordan did not maintain any suspense. Within seconds of sitting down, he told the court he had decided to postpone his decision: "I will not rule on yesterday’s motion until at least after the Court of Appeal has taken a position on contraband." 

In a brief statement, he reflected on the potential philosophical connection between the issue and his previous ruling on contraband, whose appeal is being heard later this week. It will likely take months before the Court of Appeal gives its decision. Until then, Justice Riordan will continue to "take any proof on the issue under reserve of the ongoing objection of the companies."

Beneath the poker faces on the plaintiff's side, I discerned some relief.

Back to science

In very short order, the court returned to the business at hand - the examination of JTI-Macdonald's former chemist and one-time director of research, Ray Howie.

A rhythm was quickly set for the day. André Lespérance would steadily introduce documents from the research operations at the time that the company was wholly owned by RJR-Macdonald. Mr. Howie would provide answers of varying length that often added little content. About 40 exhibits were entered in this fashion.

The steady and unmodulating speech patterns of both men were in contrast to the drama of the stories told by the documents.

These stories involved three broad themes. The first was the policy and practice of Canadian tobacco companies in funding research by independent scientists. The second was the design of RJR-Macdonald's cigarettes to overcome smoking machine measurements. The third was the secretive use of additives in Canadian cigarettes.

Mobilizing friendly scientists

As it had in other countries, the Canadian tobacco industry collaborated to fund scientists whose work was considered helpful. They did not follow the U.S. example and establish a Council for Tobacco Research (disbanded as a result of litigation), but they did work through the Canadian Tobacco Manufacturers Council.

The records which became public today show that the companies frequently struggled with differing philosophies on funding. The companies with U.S.-based owners (RJR-Macdonald and Benson & Hedges), for example, took a dim view of funding research on children's brain waves to find out whch ones would become smokers. They foresaw "traumatic consequences" if the funding became public knowledge. On the other hand, the UK/South African based companies (Imperial and Rothmans) wanted Verner Knott to continue as a favoured researcher for the industry. (Exhibit 618)

The documents suggest that Derick Crawford, who was head of  RJR-Macdonald's research branch, acted a middle manager between the scientists and lawyers at the head office in Winston-Salem head office and his CTMC colleagues who sought a unified position on industry financing as they did on regulatory issues.

Squeezed in the middle, he sold the positions of his colleagues to his head office (i.e. exhibit 618), as he represented the head-office position to his Canadian colleagues (i.e.exhibit 615, 616).

By the end of the 1980s, Mr. Howie testified, the entirety of the CTMC research funds were focused on proving that regulations on second hand smoke were undesirable or unnecessary. In 1987, as Parliament was considering legislation to protect workers from second hand smoke, the industry was looking at ways to set up a Canadian equivalent of the Centre for Indoor Air Research at Concordia university (Exhibit 612B)

Related exhibits:  611, 612, 612A, 612B, 613, 613AR/Legacy, 614R, 614A, 615, 616, 616A, 617, 618, 619, 620, 621)

Revising science 

Ray Howie had more to say about the second theme of documents - the adjustments to the tar and nicotine deliveries of RJR-Macdonald's cigarettes in the 1970s and 1980s.

A snapshot of the issue as seen by the company at the time is in an 1978 exchange of documents between a new marketer (Alan Mew) and the head scientist (Derick Crawford) (Exhibit  622, 622A). Mr. Crawford reports that the company is working hard to come up with a product with more nicotine compared with tar by year's end  and he details the variables that they are exploring to get there: "blend selection, filter design, special paper, the use of dilution, the possibility of certain additives etc., etc." Mr. Howie cheerfully explained how these various design elements could be engaged to "push in the nicotine direction".

But it was the next series of documents that introduced to this trial a new testimonial tactic. The documents involved RJR-Macdonald's response to studies into how the holes in their cigarette filters were being blocked by smokers lips, thereby delivering more tar and nicotine than indicated on the package.

The first knowledge of hole blocking (one way of over-riding the design of low-tar cigarettes to inhale more smoke) seems to have come from  RJR's 1983 in-house studies (Exhibit 623, 623A,624, 624A). In response to this knowledge, the company decided to do nothing, "unless a major issue came of it" in which case they would plead prior ignorance.

Thirty-years later, when asked to testify on these documents, Mr. Howie did not confirm what the documents clearly detailed. Instead, he reversed the opinion reflected in the corporate records, including memos he had written.  Over this past summer, in preparation for this trial, he had re-analyzed the data, and is now of the view that the company was wrong in 1983 to assume that smokers compensated in this way.

The original report was "not reliable" he testified today, and was "methodologically flawed."  His recent review convinced him that smokers did not block holes or compensate as much as the original company research concluded.  Instead of blocking 75% of the holes, only 40% to 50% would have been blocked.

To revisionist history we can now add revisionist science.

Management resistance

However reassured Mr. Howie was today, the memo written by his (now deceased) former boss, Derick Crawford suggests that the head of research and development had ongoing concerns about the placement of ventilation holes so close to the end of the filter that they would be almost unavoidably blocked during smoking, either by a machine or by a human.

In 1988, Mr. Crawford wrote a review of the situation (Exhibit 626) lamenting that he "was unable to change the attitude of Senior Management, to a lengthening of the filter and moving the holes further away from the mouth end to prevent lip coverage of the first or even the first and second line of holes."  The next year, in preparation for his retirement, he wrote a farewell note to a colleague. In it, he identified a number of steps he thought the company should take, including moving "tipping perforation holes away from being covered by the lips." (Exhibit  627 )

A narrow insertion depth in smoking machines hides
the effect of smokers covering ventilation holes with their lips

In the mid 1980s, the industry was facing pressure from Health Canada to change the parameters by which cigarette smoke deliveries were measured and Mr. Howie was tasked with coordinating efforts at the CTMC. A stumbling block between companies was the amount of cigarette that should be put in the smoking machine: RJR wanted a narrow insertion, as that would not block the holes in Export A Light cigarettes. (Exhibit 626,  628).

There was only one document entered into evidence today that was written by Mr. Howie in 1989. In it, he admits that Export A Light "had ventilation holes positioned 8 mm from the mouth end of the cigarette. When the consumer smokes this cigarette, he covers the holes, resulting in a stronger smoke." He notes that the new test method mandated by the government will require that the holes be moved a little further down the cigarette. Although his tests show that the new design delivered 13 mg of tar, he recommended labelling it as a 12 mg cigarette. (Exhibit 629)

Related exhibits:  622, 622A, 623, 623A, 623B, 624, 624A, 625, 625A, 626, 627, 628, 629,

Additives

The last series of documents introduced today involved the use of additives in RJR-Macdonald cigarettes until at least the late 1980s.

Last week, Mr. Howie had testified that all of the additives they used were on the list approved by the (UK tobacco advisory) Hunter Committee. "We strictly used that Hunter Committee list, and if it wasn't on the Hunter Committee list we would not use it."

It turns out today that this is not entirely the case. In a list of additives used (Exhibit 630R, under reserve), the company also relied on the GRAS (generally regarded as safe) list of ingredients approved for food. As André Lespérance pointed out to the witness, the GRAS list was not for substances that were burned or inhaled.

In the 1980s, the Canadian government put pressure on the companies over the use of additives, (Exhibit  632, 633), raising safety concerns. RJR-Macdonald relied on their US-headquarters for analysis of additives, and received a worried message that one of the ingredients used in Canada (sorbitol) "increased Benz-a-pyrene yields." Mr. Howie could not say today whether this information had been shared with the Canadian government or with the Hunter Committee.

On behalf of RJR-Macdonald, the Winston-Salem laboratories tested tobacco that had been treated with nicotine-enhancing ammonium phosphate dibasic, to see if it was more harmful. The test results showed that on one cancer-related test the results were 70% higher for the treated tobacco. The company was not advised against using the blend, only to reduce the amount it used.

Mr. Lespérance asked Mr. Howie whether he remembered whether RJR-Macdonald ever stated publicly that it was not using additives. "I don't recall" said Mr. Howie. Nor did he remember whether the CTMC made a similar statement.
"Because that would be untrue?" asked Mr. Lespérance.
"Yes, because we still had additives. We were in the process of removing them, but we had not removed them all."

Related exhibits: 630, 630R 631, 632, 633, 634, 635, 636, 637, 638, 639, 640

As is often the case in this trial, at the end of the day the plaintiffs still had more questions for the witness. Mr. Howie will return tomorrow, and Mr. Hoult is scheduled for Thursday.

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

Day 60: A bolt from the blue

See note on accessing documents at the end of this post.    

My guess is that each of the six legal teams involved in the Quebec tobacco class action suits spent hours this weekend reviewing scenarios for the scheduled testimony today of RJR/JTI-Macdonald's chemical analyst, Ray Howie.

If so, they may wish they had just gone to the movies or played with their children. What happened today threw over everyone's game plan for the day, and may even change the course of this trial.

The day started routinely enough. André Lespérance unhurriedly introduced documents and asked questions, which Ray Howie calmly answered.

For about an hour the focus was on the company's efforts in the early 1980s to allay concerns about (and avoid regulations over) carbon monoxide in cigarette smoke. It was a perfectly interesting story and a juicy example of the industry's willingness to sidestep health concerns (see below).

Mid-morning Kevin LaRoche, who represents JTI during Mr. Howie's testimony, tried to put some brakes on the damage to his client. He told Justice Riordan that he was concerned that the discussion of the company's actions related to the effect of their cigarettes on fetal weight and cardiovascular disease was wandering away from the "class diseases" of lung disease and addiction.

André Lespérance, likely thinking that this was no different from scores of objections on relevance that are quickly dismissed, briefly responded that their claim included the companies' failure to warn and therefore questions about informing smokers of the risks of carbon monoxide to heart disease and fetal weight was relevant.

Kevin Laroche pressed his case, saying that the scope needed to be limited “otherwise it becomes a Royal Commission of Inquiry into the behaviour of the industry which is one thing it can't be if we want it to finish in this century."

Justice Riordan dropped a bombshell:  I maintain the objection.  Unexpectedly, the plaintiff's case lay on the chopping block. Swaths of evidence presented and planned was suddenly ruled not relevant to the trial.

Immediately Bruce Johnston and Philippe Trudel were on their feet. Bruce Johnston pointed out that the Letourneau claim on addiction in particular relied on allegations that the companies lied, which they needed the opportunity to prove. It's a stunning, STUNNING objection, he exclaimed. Indeed they all looked quite stunned.

Justice Riordon then made a second surprising statement, inviting the plaintiffs to refer the decision he just made to the Court of Appeal. He went further to say that he would welcome that higher court's clarification. This sudden desire for a higher court's view is very different than his usual more biting references to the frequency with which the tobacco companies try to appeal his decisions.

Philippe Trudel recovered quickly enough to request the opportunity to present a motion for reconsideration in the afternoon, which was agreed to.

So, six months into the trial, what was that cause of action again?

And so it was that in the afternoon Mr. Howie was sent home and Justice Riordan was presented with some quickly developed arguments for and against a mid-trial change in the scope of examinations.

It was up to Philippe Trudel to make the arguments for the plaintiffs. He pointed to the numerous clauses in motion to institute proceedings that specifically refer to the company's failure to warn, and the detailing of 31 diseases caused by smoking. Among those claims is the allegation that "Mrs. Létourneau is addicted to nicotine, a toxic product and her addiction exposes her to an increased risk to get one or many of the diseases associated with cigarette use, as well as expecting a reduced lifespan." [unofficial translation]

He also referred to the decision of Justice Jasmin when certifying the class action, and the questions that were set to guide the joint proceedings: [unofficial translation]

* Did the defendants have knowledge of, or could be presumed to know about the risks and dangers associated with their products

* Did the defendants put in place systematic policies of non-disclosure of these risks and dangers

* Did the defendants trivialize or deny these risks and dangers?

It was not only the plaintiffs that thought these issues were part of the trial, Mr. Trudel pointed out, but also the defendants. He referred to the company's filings and the plans to have expert witnesses rebut allegations about many diseases.

Earlier attempts to strike down the parts of their claim that included other diseases, he reminded Justice Riordan, had been rejected by Justice Julian in a 2006 ruling. Justice Riordan himself, in a 2001 decision had rejected a request by Health Canada to limit questions to their witness, Denis Choiniere. At the time he had said that such information was relevant "in light of the claim for punitive damages." 

A decision to prevent the introduction of evidence to support their allegations was just another way of striking those allegations out of the claim, he pointed out. 

Both Mr. Trudel and his colleague Bruce Johnston tried to explain why industry actions to minimalize disease risks was part and parcel of their cause of action and their theory of the case.

Mr. Pratte, who led the industry's positions took a different approach in presenting his arguments, ignoring any pleadings or case materials. He acknowledged that the plaintiffs had met the necessary test of showing that these diseases were included in the pleadings. But this was not sufficient to allow these issues to remain part of the case, he said. He relied on case law and legal analyses which he shared with the other lawyers, but did not display on the screens.

Mr. Potter seemed to respond to hints dropped by Justice Riordan of a desire to rein in the trial. He reminded the judge of his decision in June to rule questions regarding 'firesafe' cigarettes irrelevant. He suggested that Justice Jasmin's foundational questions were not always relevant. 

For Imperial Tobacco, Craig Lockwood made a very short comment to the effect that there "needs tie back of common issues and class definition. There needs to be a substantive hook into the damages." For the federal government, Maurice Regnier said nothing.

We're awake now

Last week, Justice Riordan complained that Bruce Johnston's questions might be intended to "wake up the judge." His ruling today has certainly shaken up the plaintiffs.

Justice Riordan adjourned the day without ruling on the motion for reconsideration. 

Back to Ray Howie and Carbon Monoxide

Before this dramatic turn, Ray Howie had continued his testimony about events at the company. He continued to maintain that he had little involvement in 'smoking and health' issues and was mostly unaware of the engagement of boss, Derick Crawford, on this file.

His ability to make this sound credible took a bit of a beating when André Lespérance asked him to read aloud a handwritten note received from his boss at the end of 1981. In it, Derick Crawford brought him up to speed on the threat of government action on carbon monoxide and the plans of the CTMC "to put together an industry document comprising input from all four companies trying to refute the alleged dangers of CO." Mr. Howie's proposed task was to quickly write up "two pages of facts on why we feel there is no justifiable evidence at this time to associate CO with any health disorder."

The problem identified in the memo and in Ray Howie's testimony was that the evidence wasn't all on their side - particularly with respect to the effect of carbon monoxide on fetal weight which "does not look too good." (Exhibit 600C, see also Exhibits 600, 600A, 600B)

The 30-year old memo seemed much more compelling after being read aloud in his Irish accent than if just flashed on the screen. Mr. Howie said the as events turned out, he had not written the paper requested. The government eventually "backed off" and had not regulated carbon monoxide levels until the passage of C-51 in 1988. 

Mr. Howie will continue his testimony tomorrow. Former RJR-Macdonald President, Peter Hoult, is expected to testify on Wednesday and Thursday.

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

Day 59: The bench scientist before the bench

See note on accessing documents at the end of this post.   

On Thursday September 20th, the plaintiffs in the Montreal tobacco class actions called their second witness from Japan Tobacco's Canadian subsidiary, JTI-Macdonald.

His name is Ray Howie, and he is an analytical chemist who joined the company shortly after it was acquired by RJ Reynolds Tobacco International in the early 1970s. He came with seven years' experience working for Gallaher, a UK-based tobacco multinational which, like RJR-Macdonald, was eventually acquired by Japan Tobacco.

Mr. Howie eventually rose to the director of RJR-Macdonald's research unit (in 1989), and later was promoted even higher to become regional research director at the international headquarters in Geneva. He retired in 2001.

It may have been the Gallaher connection which made me think his still-thick accent is Northern Irish. He certainly had a celtic look -- slender, not tall, fair and with thick curly hair that would once have been black. His brilliant lavender tie stood out against the black and white wardrobe of the court.

A pleasant atmosphere

The trial is still adjusting to the change in players. Today a new member of the JTI legal team was introduced - Mr. Keven LaRoche from the firm of Borden Ladner Gervais. Like others on that company's defense team, he tried hard to set a cordial - even amiable - tone.  He is another Ontario-based lawyer who prefers to speak in English.

On the plaintiffs' side, it was the always-gracious Mr. Lespérance who put questions to Mr. Howie. With these men in the lead, and with a witness who offered no resistance to questions, the day passed at a steady but relaxed clip.

(Oh yes, it might have helped that Mr. Howie was well prepared for this session -- he said he had spent 20 days with JTI's lawyers preparing for this testimony.)

Montreal is a long way from Winston Salem

Mr. Howie arrived at RJR-Macdonald in 1974, shortly after his boss Derek Crawford had also been engaged to head the new research unit. It was a period of rapid expansion - going from a staff of 4 in early 1974 to a staff of 18 by the end of the year (Exhibit 581). Within two years, Mr. Howie was supervising ten technicians (Exhibit 582), and by the end of the decade the number of staff in the R&D department was over 30 (Exhibit 584, 584A). Mr. Howie became head of the department in 1989 (Exhibit 589) but by 1995 the research staff had been reduced to 18 (Exhibit 591).

Mr. Howie explained that the work of the unit was entirely devoted to product development and process development - making better cigarettes and making cigarettes more cheaply. They did nothing on fundamental research on tobacco and disease.

By the time he arrived in Canada, Mr. Howie explained, "the feeling was the best thing we could do as a tobacco company would be to reduce tar, because reducing tar meant reducing all the specific compounds that were carcinogenic." It was possible to remove specific compounds that were especially harmful, but for commercial reasons it wasn't done: "it doesn’t make sense because you have to have a sellable product." (See R&D Strategy in Exhibits 585, 586, 587, 588).

One of the priorities of the Montreal research firm was implementing cost-savings measures. "We found that the cigarettes that were being manufactured in 1974 by Macdonald tobacco were, shall we say, not the best cigarettes that you could make. They were throwing away a lot of tobacco that should have been used." The research unit was tasked with looking for ways to eliminating waste, reduce the density of tobacco and increase the length of the filter (Exhibit 584).

Although no work on smoking and health was done in Montreal, there was a sizeable research capacity at the headquarters of its owners, RJ Reynolds. At Winston Salem "they had 400 to 500 people qualified to do those jobs."

Adding stuff to the cigarette

Mr. Howie was asked what safety evaluation was conducted on new cigarette designs. Some new components were analysed, he said, but the company relied on third-party approval. "There was a committee called the Hunter committee that put out a list of additives that were perfectly okay from a safety point of view to add to cigarettes. We strictly used the Hunter committee list.  If it wasn’t on the Hunter list, we wouldn’t use it."

He said that by the 1990s, the company had stopped using most flavourings, although other additives were used.
"There still would be menthol in menthol brand. We would be adding water – those were our 2 big additives. There were certain additives to the cigarette paper because without the additives you can't have cigarette paper, it falls apart. We would have additives in our reconstituted sheet which would be put in by the manufacturers of the reconstituted. You can't have reconstituted sheet without additives, it falls apart." Glycerol was also used. Although he had not seen any safety sheet of the impact of burned glycerol, he was not concerned because it was on the Hunter list so "from a toxicological point of view it is fine."

Manipulating nicotine levels

There was no hesitation in Mr. Howie's explanation that research was intended to increase "nicotine impact" and to reduce tar, which he said was supported by the scientific community at the time. Among the work done to "give a little more of the nicotine impact and a little bit less of the tar" was the work of the government's Delhi research station to "really push the strains of tobacco in the nicotine direction."

But RJR-Macdonald had its own research agenda to increase nicotine delivery. Mr. Howie described the work of his colleague, John Hood to add ammonia to tobacco. "Canadian Virginia flue cured tobacco is very acidic. He was trying to get the pH up .. what that does is it gives you free nicotine which theoretically is more easily absorbed through the membranes."  (Exhibit 585) (John Hood is scheduled to testify in October.)

Making cigarette smoke easier to inhale was also an area of research. The company was trying to "get less of the vapour phase which contains compounds which are known to be irritating, like acids and aldehydes," because this would make "a smoother more acceptable product for our consumers." 

Mr. Howie was obviously proud of the work that was done by his company to reduce the tar in cigarettes, boasting of the reduction of the Sales Weighted Average Tar of cigarettes manufactured by the company from 18 mg of tar per cigarette in 1975 to 9 in 1990.

So does smoking cause cancer?

When asked whether cigarette smoke contained compounds known to cause cancer, Mr. Howie comfortably answered that it did. "Lets say there are 4000 compounds in tobacco smoke ...anything from 30 to 40 to 50 are carcinogenic." But when it came to the big question of whether tobacco caused disease, he hesitated.

Q. Do you remember what the company was stating with respect to tobacco and disease?

A. I don’t remember.

Q. Did it acknowledge that tobacco caused disease?

A. I don’t know.

Q. You were head of the research Department starting in 1988?

A. Yes.

Q. As the head of the research department you can't inform the court what was the position of RJR-Macdonald on the issue of whether tobacco caused disease?

A. I repeat. I can give my position but I can't give the company position.

Justice Riordan: You don’t even know if there was a company position?

A. That’s correct.

His own view, offered somewhat after this exchange was that the statistical link did not prove causality, agreeing that "no satisfactory mechanism has been described for any disease."
Many of the exhibits presented today show that Derek Crawford (Mr. Howie's predecessor as head of R&D) was quite involved in "smoking and health". (Exhibit 212A, 212B, 593, 594, 595, 596, 597)  Mr. Crawford is now dead, and today's witness stressed that he was never engaged in this type of discussion or work. "I had my white coat on and was in the laboratory," he repeated.

Defending formaldehyde from government attack

At the end of the day, however, he revealed his own actions in trying to counter government education campaigns on the harms of smoking.  In 1998, the British Columbia government had widely distributed a poster on the chemicals found in smoke. Mr Howie was working on a response (Exhibit 599)

British Columbia Health Campaign

Q. Why did you nmeed to provide a response?
A. They had billboards scattered around B.C. showing for example formaldehyde - it would show a bottle with a frog in it and the frog was dead... 

To me it was a little bit biased. The actual levels of benzpyrene, formaldehyde etcetera  the ones that are often cited as cauasing diseases are ..so small that it really doesn’t harm anyone ...

Q. Did you deny that tobacco smoke was harmful?
A. That wasn’t the point. They were aiming these ads at specific compounds within tobacco smoke and we were addressing  - we were redressing – their comments..

Mr. Howie will continue his testimony next Monday, September 24th, and is expected to finish the following 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: 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

Day 58: Japan Tobacco's Americas President

See note on accessing documents at the end of this post.  

The 17th floor courtroom at Montreal's Palais de Justice was a little less crowded on the second (and last) day of testimony by Japan Tobacco International's Regional President for the Americas, Michel Poirier.

That is to say there were only a dozen or so sharp-suited JTI employees watching their man from the public area at the back of the room!

The defence team's charm offensive

In only the second day of JTI-Macdonald witnesses, the impact of changes at the front of the room are already beginning to be felt. 

Mr. Guy Pratte
JTI-Macdonald Counsel

The lead counsel for JTI-Macdonald, Guy Pratte, has a markedly different style of play than the Imperial Tobacco lawyers who have occupied the front benches for the past six months.

For one thing, Mr. Pratt is very polite. Not polite in the benign Emily Post kind of way, but polite in the professional etiquette of a cold-war diplomat. In a courtroom where good manners have not yet been used much as a weapon, this is beginning to look like a sharp arrow in JTI's courtroom quiver.

One example: At the very beginning of the day, Mr. Pratte offered a humorous explanation of a few issues hanging over from the day before, with visible expressions of good will. He then smilingly followed up with a request for Justice Riordan to reconsider a decision that had not gone his client's way. Et voila! A question whose answer was unhelpful has now been put under reserve!

Extreme Advertising

Today's testimony began more or less where it had left off the day before - with the introduction of promotional material from JTI-Macdonald's Extreme Sports Series. (Exhibit 573 and 573a)

Ad for Export A Extreme Sports
Exhibit 573A

In adding details about the dates of the event, Mr. Pratte put his own spin on the ad. It was for an event in Ontario, he said, suggesting that despite being in French the billboard would not have appeared in Quebec where this trial is based.

The court room is full of lawyers who are veterans to the constitutional challenges on tobacco advertising bans. Justice Riordan may have been the only one in the room who did not know that JTI-Macdonald had gone to 'extreme' lengths to heavily promote otherwise minor local events, and that the ads had appeared in distant places and long after the events were over. The picture of this billboard is very likely from Montreal.

This sponsorship series was the basis for several questions over the day. Mr. Trudel was later able to elicit from Mr. Poirier that "some young people would be interested in motocross or motorbike" and "there is a possibility that these might be appealing to youth, yes." 

Bar promotion for
extrememusicseries.ca

Another document shown detailed plans for the development of a web-site to promote JTI-Macdonald's branded sponsorships. The profile of those it was intended to reach were described as "living for the day," "having a low attention span," and being of the "nintendo age."

Much more about the document I cannot tell you. Mr. Pratte objected to it because there was no proof that a web-site was ever developed. Again, Justice Riordan is one of the few in the room who was not aware that JTI-Macdonald ran two such sites -- extremesportsseries.ca and extrememusicseries.ca. As a result of Mr. Pratte's objection, the exhibit was put under reserve. (Exhibit 573 AR)

Despite various questions, JTI-Macdonald's president stood firm on the position he had taken yesterday that advertising would not lead young people to smoke, and that sponsorship advertising was even less likely to. He repeated that "advertising does not influence people to use a product category that is already well known... sponsorship even less so." As basis for this, he cited his 32 years' experience marketing consumer goods, but said he had no other research basis to support  his conclusion.

Everybody knows ...

In 2000, Japan Tobacco went to court to try to block the federal government's new health warnings. Mr. Trudel used the affadavit signed by Mr. Poirier in that court action (Exhibit 575) as a spring-board for a number of questions about cigarette package warnings. He began by referring to the first warning that appeared in Canada (WARNING. Health Canada advises that danger to health increases with amount smoked. Avoid inhaling.) and asked the witness whether the warning was sufficient.

For not the first time, Mr. Poirier deflected the issue to the federal government. All I can say is that we must put in context of society at the time. The deputy health minister thought it would be silly to put health risks on packages because everyone knew already that smoking was dangerous. 

As he continued on this vein, Maurice Regnier (who represents the federal government) was on his feet objecting to the 'hearsay' evidence. Justice Riordan raised his eyebrows as he looked at the witness: The question was whether the warning was sufficient. 
I don’t know, said Mr. Poirier.

Ethics vs. Activists: the Tobacco Experience

Another blast-from-his-past was offered to Mr. Poirier in the form of a speech he gave to the Canadian Club in 2002, shortly after becoming president of JTI-Macdonald. (Exhibit 576) The speech is a wideranging defence of the company and attack on public health regulations.

Tobacco control activists will tell you that higher taxes will reduce smoking. But when I look at the historical record in Canada, I see no evidence to support that assertion - and goodness knows we've had lots of tax increases on tobacco products in the past.

Did Mr. Poirier really think that taxes had no effect on consumption, Mr. Trudel wanted to know. The answer was clear. "I can tell you that higher taxes shows no impact on total consumption of cigarettes."  Well, what about advertising? "I do not see an impact of marketing on total consumption" said the witness.

Mr. Trudel showed him that a contrary position had recently been taken by his head office. The 2012 annual report of Japan Tobacco says that in mature markets the industry volumes have been declining mainly due to a number of structural factors, such as demographic changes, tax increases, smoking ban and tightening regulations on promotions and advertisement. (Exhibit 577 - caution large file).

Mr. Poirier did not change his testismony. Other mature markets might be different, said Mr. Poirier, but in Canada neither advertising bans nor taxes could be credited with a fall in smoking rates. He did, however, acknowledge that smoking bans did.

The last inning - and blocked shots

By midday, Mr. Trudel had finished his questions, and after the lunch break his colleague Bruce Johnston took over.

Justice Riordan often looks irritated during Mr. Johnston's clean-up round, and this was particularly the case today. He frequently pushed his chair back from the desk, rubbed his face, scowled or put his head in his hands - not very encouraging feedback for any lawyer standing only a few feet in front of him.

Nonetheless, Mr. Johnston persevered. Before long he began to line up a shot against Mr. Poirier's statement that the company accepted that smoking was addictive in 1998 (when he joined). This assertion seemed inconsistent with the directions that were sent to Mr. Poirier in October of 1998 (Exhibit 569 and 569B) from its head office at RJR International. Among the material in this manual were the opening comments by Reynolds CEO, Jim Johnston, before the 1994 Waxman committee.

Mr. Johnston was heading to contrast Mr. Poirier's view against the more famous position of RJR ("Mr. Congressman, cigarettes and nicotine clearly do not meet the classic definition of addiction. There is no intoxication."), but he never got there.

Mr. Pratte intervened. Mr. Johnston interrupted. Justice Riordon snapped back.
Are you trying to rub the witnesses nose in it? Are you trying to wake up the judge? All you are doing is taking up a lot of time on questions like this. It was a tense moment.

A light assault on too smooth answers  

The topic of light cigarettes surfaced again today, both in the examination by Bruce Johnston, in that of Maurice Regnier and that of Guy Pratte. 

In answers to questions by Mr. Johnston, Mr. Poirier expressed an equivocal view of lower tar cigarettes. "There is a possibility that light and mild may actually be safer," he said, but that the company does "not communicate that to consumers."  

He agreed with Mr. Johnston that it would "be wrong to tell smokers that any particular cigarette is safer than any other," and also wrong to allow smokers to make such an inference - even if such cigarettes actually were safer. Left hanging after these questions was his company's continued marketing of 'smooth' brands, which Mr. Poirier had yesterday testified as being essentially the same in meaning as 'light' or 'mild'.

Yesterday, Mr. Poirier had used the issue of light cigarettes to take a few swipes at the federal government. He had said (twice) that the federal government had research findings showing that consumers believed light/mild cigarettes were safer but that neither Health Canada nor the Competition Bureau had ever given the company copies of the research. He also complained that his request for a meeting with Minister Rock to discuss light cigarettes had gone unanswered.

Today, Maurice Regnier effectively removed these comments from the record. He showed Mr. Poirier a copy of a consumer study on light and mild cigarettes that had been faxed to JTI-Macdonald from Health Canada, and which remained in the company records that were exchanged prior to the trial. He asked Mr. Poirier to substantiate his claim that the Competition Bureau had been asked to provide research (over Mr. Pratte's objections, Justice Riordan directed this to be done). He asked the witness whether or not a meeting meeting had indeed been held amongst the industry, the Minister's staff and departmental officials.

Mr. Regnier could be forgiven for metaphorically dusting his hands off as he returned to his seat.

Guy Pratte also turned to the issue of light and mild cigarettes, asking his client whether the Competition Bureau had ever found that light cigarettes were misleading (the answer was no), asking what the outcome of the Competition Bureau's review had been (a voluntary agreement, now Exhibit 40016).

Most curiously, Mr. Pratt asked whether any regulation or prohibition was ever made to ban words like  light and mild. No, said Mr. Poirier. Yet a year ago, such regulations were published in the Canada Gazette and the Regulatory Impact Assessment for the regulation shows that consultation with the industry included at least three meetings since 2001. It also provides a summary of research findings. A different legal team handled those issues, perhaps. 

Tomorrow, Mr. Ray Howie, a scientist with Macdonald/RJR-Macdonald/JTI-Macdonald is scheduled to appear. 

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

Day 57: Quebec's homegrown tobacco boss

See note on accessing documents at the end of this post. 

A new chapter opened in the trial of the Montreal class action suits against Canada's big three tobacco companies on Tuesday, September 18th.

The plaintiffs have (mostly) ended their inquiries of witnesses from BAT's Canadian subsidiary, Imperial Tobacco. Today the focus shifted to JTI-Macdonald, the Canadian subsidiary of Japan Tobacco. They began at the top by calling as their first witness the president of the company, Mr. Michel Poirier. 

Mr. Poirier is not only the head of the Canadian operations, he is also Regional President for the Americas Region for Japan Tobacco International. That is to say, he is a directing mind in the world's third largest tobacco multinational. (JTI-Macdonald is 100% owned by Japan Tobacco International which is 100% owned by Japan Tobacco, which has one principal shareholder - the Japanese government).

Mr. Poirier's testimony is thus an important moment in public health history as well as in this case, in that it allows the views and positions of a global player to be exposed, recorded and examined. The transcripts of his time on the witness stand today and tomorrow will warrant careful analysis -- sadly problems with amplification in the room today made it impossible to provide reliable quotes in this overnight report. 

Hier, Montréal. Today, the world. 

Although he now lives in Oakville, Mr. Poirier is a local boy. He studied science at Montreal's elite College Brébeuf CEGEP. 

Yet despite his Montreal roots and French-language education, he elected to testify in English. Quebec courts are truly accommodating to the linguistic needs of foreign owners!

A bit of excitement

Six months in, the trial has lost much of its regular following, and on many days there are only three or four witnesses to the proceedings in the courtroom (two bloggers and a couple of insurance industry observers).

Today, however, there was a buzz in the air, a security detail in the hallway, a few dozen new faces in the room -- and television cameras waiting in the small designated camera spot near the elevators. It felt like the occasion it was.

Michel Poirier
President, JTI-Macdonald

The president and his sizeable entourage cut a good picture. Tall, smart-looking, well-dressed and with an air of importance, these (mostly) men looked like a short list from a casting call for Mad Men.

Mr. Poirier looks like he stepped out of the cover of a glossy business magazine. At 54 years of age, his hair is authoritatively grey where his face is bronzed and youthful. He may have learned a thing or two about looking good in the jobs he had before joining the tobacco business in 1998 --  working at Revlon, Johnson & Johnson, Proctor & Gamble, and Alberto-Culver.  

And a mannerly start

Today's proceedings were among the most polite of the trial to date. This may reflect the start of a new chapter, or it may be the result of rotation of players. Now it is counsel for JTI-Macdonald, led by Guy Pratte, who occupy the front row and who lead the industry's defense. 

Mr. Poirier also made an impression with the style of his answers. By the standards of this trial, he was direct, brief and clear in his answers. There was no apparent hiding behind jargon or weasel words. Both good and lame answers were given in the same deadpan delivery. This flat demeanor is not without tactical considerations: a business profile on Mr. Poirier quotes his belief that "visible reactions always make things worse."

Certainly it worked for him. Justice Riordan seemed both relaxed around and attentive to this witness, looking at him intensely and engaging more frequently in the exchanges. On a few occasions when Mr. Poirier attempted to provide an answer to a different question than the one he was asked, Justice Riordan intervened to clarify the question and press (successfully) for an answer. 

Some important questions

Mr. Trudel took the witness through a quick tour of the key issues of the trial --  public communications on smoking and health issues, scientific research within the company, knowledge of health risks within the company, communication of risks to smokers, compensation and light cigarettes, addiction, marketing to youth, etc. 

He began by introducing the current public position of Japan Tobacco on key issues, asking the witness to elaborate on the applicability of those positions to JTI-Macdonald in the current conetxt. (Smoking and Health - Exhibit 565; Reduced risk - Exhibit 560, Code of Conduct - Exhibit 561 and emloyee Code of Conduct Exhibit 566; Pack values for tar and nicotine - Exhibit 562, Health effects of active smoking - Exhibit 564; Addiction - Exhibit 567 and 568)

Mr. Poirier explained that JTI-Macdonald's R&D activities were focused on product development, and that research related to health issues was conducted in Japan, while the application of some of that research to product issues was done in Geneva. The research is more focused on how we come up with a safer cigarette, he explained, but although the company is coming up with products that could be alternatives, the problem is they are not accepted by consumers. 

He described the development of a less harmful but popular cigarette as the "holy grail" of the industry, but offered little appetite for a crusade. His company had not introduced snus in Canada, for example, because there is not sufficient demand.

This pattern of answers was repeated throughout the day: 'on the one hand we say we are doing the right thing (i.e. developing safer cigarettes), but on the other hand we have found reasons to not actually do them (i.e. we aren't selling any, and it is the fault of other actors).'

Mr. Poirier conceded that the company had not likely ever contributed knowledge of a new harmful component of cigarette smoke through research, but did not seem troubled about it. The harmfulness of smoking is well known he said, citing his own view as a five year old that every cigarette is a nail in your coffin.

Philip Trudelle tried to elicit a distinction between knowledge that there were risks involved in smoking and knowledge of the specifics risks, such as likelihood of getting sick or dying from smoking. Despite repeated questions, Mr. Poirier would not be drawn into exposing any awareness of specific risks (of disease, death or addiction). 

Many of his answers were at the very least ambivalent: 

- He said that the harmfulness of cigarette smoking was well known, yet could not identify many diseases himself, nor quantify the risk of disease nor the magnitude of harm. 

- He said it was important that consumers understand the consequences of smoking, but that giving them detailed information on the risks of smoking would "dilute" the overall message that smoking can kill you. 

- He recounted his concerns before accepting a position at (then) RJR-Macdonald that the company's views were aligned with his belief that smokers should know the risks, but offered no support for the regulatory changes in risk communication since then. 

- The JTI principle of transparency and openness with smokers has to be applied, he said, but then qualified that it was up to each market to determine what level of transparency was required and no further action was required in Canada.

- He acknowledged that cigarettes were addictive, but thought it would be a 'disservice' to smokers to tell them that some people can't quit. When people are motivated enough they can quit, he said.

No voluntary measures

Mr. Trudelle showed the witness an exchange of letters between him and former health minister, Allan Rock. The minister of health had asked the companies to stop using terms like "light" on their cigarettes (Exhibit 563). In Mr. Poirier's response he had agreed to merits of providing more information to consumers about light cigarettes being no less harmful (Exhibit 563A), the company had taken no voluntary measures. 

Today Mr. Poirier did not accept that 'light' cigarettes are considered by smokers to be safer. He had no research of his own to support this position, and blamed the government of Canada for not having made its research available during the (closed-door) negotiations with the Competition Bureau that led to an agreement with the company to end the use of some descriptors.

Mr. Trudel asked him about a position of JTI-Macdonald represented in their challenge to health warnings (available on Legacy), which was likely made while Mr. Poirier was heading the company. The origin of this document are still a little murky, but in it JTI-Macdonald is cited as saying if it identifies some component of tobacco or cigarettes as harmful, then we will immediately remove that component. After being prompted by Justice Riordan to answer whether this was the position of the company in 2001, Mr. Poirier qualified the commitment.  I think we would say that if it possible to remove it and if the product is still acceptable to consumers, we would remove it

In an even more stark contrast between testimony today and documentary records, Mr. Poirier affirmed that in 2001 the addictiveness of smoking was well accepted (he hastened to add in the modern meaning of the word). Yet in these contemporaneous court filings, the company had said There is no scientific agreement on a definition as to what degree of use constitutes addiction, nor on what addiction is .

Advertising

Ad for Export A
Extreme Sports Series
circa 2001

Towards the end of this first day, Mr. Trudel introduced the company's policies and activities on advertising. Among the exhibits introduced were those tracing the development of the sponsorship promotions for Quebec during Mr. Poirier's early years at JTI-Macdonald.  (Exhibits 571, A, B, C, D, E) 

Mr. Poirier denied that advertising could recruit youth to smoking. My experience in over 30 years is that people do not adopt a product category they already know exists by advertising. Sponsorship advertising is even more remote, he said, as it doesn't talk about the product. 

He did concede that motocross was something that would likely appeal to those under 18 years of age.  

Mr. Poirier returns tomorrow for his second and likely last day of testimony at this trial. 

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