Wednesday, 23 January 2013

Day 105: Repetition and Consistency

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

Today (Weedless Wednesday) was Richard Pollay's third day of testimony as the expert witness for the plaintiffs in the Quebec tobacco class action suits.

Mr. Pollay spent his professional life on the "wet coast" at Vancouver's UBC, and his tanned face suggests that so far this winter he has been staying in sunnier parts. If so, the sudden cold snap that hit Montreal just in time for his testimony might have made him question why he agreed to appear in January.

The plaintiffs, however, are unlikely to have any second thoughts about their choice of expert witness after this week. As one might expect from a professor of marketing, Mr. Pollay made his testimony with a happy blend of pedagogy and salesmanship.

It certainly seemed to go over well with the most important customer in the room, Justice Brian Riordan, whose body language and questions to the witness suggest he was an appreciative audience.

Tying up loose ends

Yesterday, Mr. Pollay had made occasional references to information he had seen in documents without being specific about where exactly the information could be found. Justice Riordan made a pointed comment that he found such answers "not very helpful" as it did not allow him to use them.

Not surprisingly, Bruce Johnston acted on this prompt and the first part of this morning was spent showing documents to Mr. Pollay which confirmed statements he had made yesterday.

These included:
* Bob Bexon's 1984 memo (Exhibit 267) that calculates the number of quitters is 5 times higher than the number of switchers.
* A memo from Imperial Tobacco's files (Exhibit 1330), where BAT's Paul Bingham admits that he ghost-wrote Jean Boddewyn's paper against tobacco advertising.
* A RBH paper that talked of brand loyalty among smokers being extraordinarily high. "On a
scale of 1-10 - if Pepsi brand loyalty is a 4, cigarettes are a l0."  (Exhibit 1178)

This exercise also allowed Mr. Pollay to reinforce many of the themes of his report, as well as highlighting some memorable citations from the documents.
* "A consumers perception of a cigarette is based 80% on Pack/Image and 20% on taste." (Exhibit 1178).
* “If the last ten years have taught us anything, it is that the industry is dominated by the companies who respond most effectively to the needs of younger smokers. (Exhibit 298.22)
* There is nothing, nowhere, nohow we would ever dream of doing to influence young people in terms of their decision to smoke. On the other hand, once they have made that decision, they become an incredibly important part of our marketing strategy. We will go out of our way to ensure that our products and brands are relevant to young Canadian smokers. (Exhibit 1146.1)

A tour of Mr. Pollay's Advertising Collection 

Attached to Mr. Pollay's report is a set of 107 advertisements which he collected over several decades. These pictures were put on the trial record and will soon be available as exhibits 1381.1 to 1381.107.

A series of ads from this collection were displayed on the overhead screens as Mr. Pollay was asked for his insights into the design of the ads and the imagery used in them.

"Using sports is desirable for 2 reasons. It links your brand with athleticism and health and the celebrity of sport. It also attracts the attention of the young, who are more interested in sport.

"The reflection of a person's face [in the Extreme Sports Ads]conveys how you will be seen.  A brand is important because it affects how people see you."

Although almost everyone in the room was old enough to remember a time when tobacco advertising was ubiquitous, the ads displayed gave the impression of being from a much more distant past than the written documents that are normally displayed overhead. It was a "what were we thinking!" moment.

Rebutting the Rebuttal

Immediately after lunch, Mr. Johnston asked his last question by inviting Mr. Pollay to clarify a criticism made in by Nobel-prize winning economist James Heckman on behalf of Imperial Tobacco.

This distinguished economist explains at the opening of his expert report that he had "been asked by counsel for the Defendants to evaluate whether in his October 2006 report in this matter Dr. Richard Pollay has provided a reliable basis for concluding that a causal relationship exists between tobacco company advertising and aggregate smoking." 

Bruce Johnston asked "Where you mandated to show that there was a causal relationship between advertising and smoking?" and was told "No."  Well, that certainly explains why there is no such explanation in the text. But what prompted such a rebuttal?

(Mr. Heckman's report is not yet finalized and nor is the discussion around it. Imperial Tobacco had asked for special access to Statistics Canada data, a request which was refused by Justrice Riordan in a June 2011 ruling. The company may have been so confident that the Court of Appeal would agree with them that they seem to have ignored the direction in his ruling that the witness should begin work immediately with the data available. Now that the higher court has rejected their request, Ms. Glendinning has pointed the finger at the (absent) federal government counsel as the reason why the report was not finished.  Justice Riordan offered to intervene if necessary. Another charge against the government's empty chair!)

Given that the tobacco companies hired an expert to say that Mr. Pollay was wrong about advertising causing smoking, one might have expected that he would be allowed to actually give an opinion on the subject. It was not to be. Today they objected to that very question being put to him. "We are in a trial from Kafka!" observed Bruce Johnston before thanking his witness and sitting down.

The cross-examination

Simon Potter was the first of the industry lawyers to question Mr. Pollay, just as he had been with Mr. Proctor last month.

His first question doubtless caused some embarrassment to Mr. Pollay, who had testified on Monday that he had not been involved in the Insolia case which resulted in a judgement critical of his work. He repeated today that he had not been involved in the case, and that he had looked it up in Lexis/Nexis and found none of the lawyers' names familiar. His CV (Exhibit 1381.108), however, gave a different account, and reports that he had produced an affidavit for the case in 1998.

When this was pointed out to him, Mr. Pollay said contritely. "Oh, dear. I am mistaken. I don't remember the case or the affidavit. I was mistaken. I stand corrected." It was the last time that Mr. Potter got the answer he wanted.

Mr. Pollay was able to step over several traps that I identified in the questions put to him in this cross-examination. "Are you aware that the tar and nicotine levels (on an ad from the mid 1980s) were determined according to a method imposed by the government?"  he was asked. A simple "yes" might have helped the industry's position that it was the federal government that established the rules (while in fact they had no legal authority to do so until after the ad in question), but Mr. Pollay didn't bite. "I honestly can't speak to the process," he said.

Nor would Mr. Pollay concede that the small health warning on the bottom of cigarette ads constituted "repetition" of health information. "It is not a repetition of impressions," he said "because fewer than 10% will read fine print - and that is definitely fine print!"  

The second approach tried by Mr. Potter was to try to establish that the activities reviewed over the week were consistent with the behaviour of all manufacturers. "Knowing your customer" was true for all manufacturers and service providers, he suggested. "Companies should do consumer research." "Brands are everywhere.""Cigarettes are not the only things that have brands and brand families." "Lifestyle advertising is ubiquitous" "All of sponsorship is designed somehow to give value to the name of the company."

For the most part, Mr. Pollay agreed with his suggestions. But he would not offer any support to the "societal consensus" argument that Mr. Potter laid out at the beginning of the trial. He refused to bite when he was asked to agree "that this is part and parcel of our society's way of making sure that offer matches demand."

"I am not sure where society fits into this picture. It is certainly how management tries to make an offering that will be successful in the market place." said Mr. Pollay

Over the afternoon, Mr. Pollay was asked about mature markets, the role of advertising in growing a market, the skepticism that consumers direct towards advertising. His answers were consistent with those he had given to Mr. Johnston, although he used the opportunity to explain further why he disagreed with Mr. Potter.

It took about 2 hours (including break) before Mr. Potter concluded with "those are my questions" and sat down.

Tomorrow, Mssrs. Doug Mitchell and Craig Lockwood are expected to complete the cross examinations on behalf of JTI-Macdonald and Imperial Tobacco. It is expected to be Mr. Pollay's last day of testimony at this trial.

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.