Tuesday, 22 January 2013

Day 104: The soul of persuasion

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

Richard Pollay's second day on the stand at the Montreal trial of the Quebec tobacco class action suits was a rich and relatively uninterrupted presentation on Canadian tobacco marketing.

Mr. Pollay was not asked to comment or elaborate on his Expert Report (Exhibit 1381), which is considered to have been "read in" to the trial record. Instead, as he had done during his questions to their first expert witness, Robert Proctor, Mr. Johnston chose to ask Mr. Pollay to comment on other documents that have been gathered into the court record.

Those he selected were among the most compelling and readable accounts from within the marketing departments. By the content and the candour with which they are written, these records are among the "hot docs" or "smoking guns" in this trial record. With the added benefit of Mr. Pollay's insights they became even more valuable, and help establish a context for other documents and testimony.

Justice Riordan clears the way for the plaintiff's questions 

Bruce Johnston's tactic of using documents not referred to in the expert report must complicate considerably the work of the defendant lawyers, who consequently have to prepare against all documents on record. ("Can you give us a moment?" was the repeated request as they searched for the next unexpected document.)

The defense team tried to prevent this happening, first by objecting to questions that went beyond the content of Mr. Pollay's report. Justice Riordan made it very clear that he was not sympathetic to this argument and that he intended to allow experts to "comment on the proof." 

Their second attempt was to suggest that documents that had been entered as exhibits as a result of the May 2 ruling should not qualify as "the proof." On this point, Justice Riordan also gave them little comfort. He said that although the 'truth of the statement' being discussed had not been established, the witness could still comment on the fact that it had been made. (He allowed for a standing objection to such questions to be automatically entered, but dismissed them all.)

That is not to say that the defense lawyers were not successful in blocking some questions or testimony, as there was at least a handful of concerns were agreed to by Justice Riordan. He did not, for example, permit a question that would have allowed Mr. Pollay to contrast the industry's position when challenging laws that advertising bans had no effect with their internal view that it was among the causes of reduced cigarette consumption. (Exhibit 762) Nor would he allow Mr. Johnston to ask for Mr. Pollay's views on the reputations enjoyed by industry consultants and witnesses.

The highlight tour

The documents presented today allowed Mr. Pollay to cover many of the points that the plaintiffs have sought to establish over the past months, and to explain some of the key concepts of his expert report.

He disagreed with the testimony by several industry witnesses that the industry did not have the required credibility to communicate with smokers about the harms of smokers. Mr. Pollay referred to Imperial Tobacco survey results showing that smokers were more likely than not to consider the industry credible (Exhibit 987.21). On issues where the communication went against the industry's interests, this credibility would climb further, he said.

Exhibit 987.21
Mr. Pollay spoke frequently about the importance of brands to the "transformational advertising", that builds a product personality. Doing so takes sustained and consistent effort, happens at a "glacial" pace but has a long-lasting impact.

Brands are particularly important element of tobacco marketing, he said, as cigarettes were "badge products - a display of identity". He explained that the industry felt it was important to "brand them [smokers] while they are young" as smokers' loyalty to their brands was extreme. "On a scale of 1 to 10, it is a 10. Despite smokers being conflicted, they keep coming back and they come back to the same product."

Brands not only provided identity to recruit new smokers, they also provided reassurance to smokers that were at risk of quitting. Marketing to these smokers would "provide them with a brand imagery reinforcement so they can feel good about themselves." 

Marketing could help overcome health concerns, as these were subject to the "wall paper effect" and "becoming part of the background."  Even the industry's refusal to admit that cigarettes caused cancer had a marketing effect, as "the continuing litany of denial helped the smoker rationalize that there was not yet enough evidence that the case is proven conclusively. All of that helps the smoker rationalize their continued nicotine dependence."

Mr. Pollay said that quitters were a major concern for the companies, and that Imperial Tobacco recognized that the number of potential quitters ("pre-quitters") was four times that of the population that were potential switchers. The marketing department at Imperial Tobacco calculated in the mid-1980s that if everyone who tried quitting was successful, the industry would collapse in about 3 years. (Exhibit 1110)

Exhibit 1110
It was these worries about quitting that led to an unprecedented research effort by Imperial Tobacco to try to "put brakes on the decline" and "prevent the catastrophe."

This project was Project Viking, and it included the distinct sub-activities Project Day ("to try and come up with products that might seem to be new and improved") and Project Pearl ("a public relations program"). 

Mr. Pollay and tobacco industry marketers agree

There were hardly any moments during the day that Mr. Pollay did not confirm or agree with the statements that were shown to him that had been written by tobacco company marketers. He essentially supported the written conclusions of some of the most senior marketers, such as Mr. Kalhok, Mr. Short, and Mr. Bexon.

On one occasion at least, the agreement seemed to go both ways. After the 1990 trial of the Tobacco Products Control Act, the marketing department of Rothmans, Benson and Hedges had assigned Connie Ellis to review the documents from its rival firms and to include this review in an analysis of the industry's strategies. The document which resulted from this work (A Strategic Review - The Canadian Tobacco Industry, Exhibit 762) has much in common with Mr. Pollay's perspectives.

As had Mr. Pollay, Ms. Ellis concluded that the marketing of ITL and JTI-Macdonald was not primarily to attract brand switchers, but was to offer reassurance to existing smokers and to recruit new ones. Mr. Pollay and she shared the view that Rothmans' market share had suffered because it had not made branding and imagery paramount, and had not pursued the youth market. (Mr. Pollay remarked that after this analysis, Rothmans had introduced Belvedere rock concerts and other youth-appealing promotions).

Exhibits discussed today include:

Exhibit 119.1  Assumptions and Strategies for marketing over the next 10 years (1976)
Exhibit 113A Social Currents 1976
Exhibit 141 The Players Family 1977
Exhibit 266, (266A) File Viking 1985
Exhibit 1110 Saving the Canadian Industry 1984
Exhibit 990.16 Project Viking  1986
Exhibit 987.21 Project Viking 1992
Exhibit 370 Project Day 1980
Exhibit 520-cry30 Tracking Study 1988
Exhibit 520-cry27 Youth Target 1987
Exhibit 520-cry32 Review of ITL Brand Strategies 1988
Exhibit 762  Strategic Review - The Canadian Tobacco Industry - 1994
Exhibit 536 Advertisement 1958

Landing on the Federal Government's Empty Desk

The federal government is no longer a party to the case, but it still seems to be at the centre of the tobacco industry's defense.

Another expert report was filed today, this time from Mr. Robert John Perrins, who is the Dean of the Faculty of Arts at Acadia University and also an expert witness for JTI-Macdonald. Despite his university responsibilities, Mr. Perrins has found time to write a very lengthy report reviewing activities within the federal government, in particular within Agriculture Canada and Health Canada.

The most recent supplement to his report, made available today, brings the length of his combined reports to about 750 pages. A quick scan of these suggest that he doesn't put the federal government in a very good light. It is hard to say whether he does so unfairly as his report speaks of events that have not previously been documented or made public.

Mr. Perrins wrote his reports on the basis of papers released to the industry during the discovery phase of its "action in warranty" against the federal government. This lawsuit was dismissed by Quebec's Court of Appeal last fall, but it would appear that the fact that the government is no longer in the case does not mean that the industry has to hand the documents back or pull back any expert reports written on them.

It seems a little odd that the tobacco industry now has possession of what seem to be many thousands of documents that have not been shared with public interest groups, with parliamentarians, with journalists or with other participants in the development of health policy. These include documents marked "advice to the minister" or given other classifications that would normally make them difficult to release except in the context of litigation.

No one with a health perspective can conduct their own review of the documents to see whether Mr. Perrins has his story straight. The industry has more insight into and ammunition against government policy. Curiouser and curiouser.

(Links to Mr. Perrins reports: Part 1, Part 2, Part 3, supplemental report, second supplemental report).

Tomorrow will be the third day of Mr. Pollay's testimony, and it is expected that the cross-examination by the industry lawyers will begin. Thursday is expected to be Mr. Pollay's last day of testimony. 

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.