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)
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.
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
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,
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.
Click on: https://tobacco.asp.visard.ca
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.
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