Wednesday, 26 September 2012

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  644644B).

* 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 648648A648B648C)

* 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  641641A).

* 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:

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