Tuesday, 20 August 2013

Day 158: The federal government in the rear view mirror.

There was the steady hum of work in Courtroom 1709 of Montreal's Palais de Justice today as Japan Tobacco's defence team finished leading their expert historian, Professor Robert John Perrins, through the presentation of his report.

The lawyer leading JTI-Macdonald's defence, Guy Pratte, demonstrated his ability to elicit a steady stream of key phrases from his witness while his nimble-fingered assistants highlighted related passages on the overhead screens. I lost count of the actual number of documents that were presented (scores of them - of which only a few are identified below!), but these are only a fraction of the hundreds which were put on the trial record this week. (They are, alas, not yet available on the plaintiffs' database, but when they are they can be located as extensions to the exhibit numbers attached to Mr. Perrins three-part report, i.e. 40346, 40347 and 40348).

Mr. Pratte's efficiency was aided by the plaintiffs' decision to sit on their hands throughout Mr. Perrins' testimony. They raised no objections and made no comments, no matter that Mr. Pratte's questions veered into the once-disputed areas of irrelevance, leading-ness, or beyond Mr. Perrins expertise.

Justice Riordan seemed quite pleased with the day, listening with apparent interest and taking steady notes.

The federal role

The scope of Mr. Perrins report is captured by the highlights he presented over the past two days. Today he shared his conclusions that:
* The main goal of the federal government was to encourage smokers to quit, and to discourage non-smokers from starting
* Despite this, the government acknowledged that some smokers could not or would not quit, and that the health of these people would benefit if lower-tar / less hazardous cigarettes were on the market.
* The encouraged smokers to choose cigarettes with lower tar levels by measuring the tar content of the smoke from cigarette brands and making public lists that ranked cigarettes according to their apparent harmfulness. (Exhibits 40256, 20007.7)
* The government was aware that if smokers who switched to lower tar brands "compensated" by smoking more cigarettes or inhaling more deeply that the benefits of these brands might be negated. They alerted smokers to this possibility, but did not believe that compensation was a widespread phenomenon. (Exhibits 20007.8, 40346.325, 40348.1, 40348.244,, 40347.95, 40347.132)
*The government grew to believe that that people "smoked for nicotine, but died from tar." While they aimed to reduce the levels of both nicotine and tar in Canadian cigarettes, they were more concerned with lower tar levels and accepted that a minimum level of nicotine might be necessary to make these cigarettes acceptable to smokers. (Exhibit 40346.272, 40347.209. 40348.28)
* The government researched ways to reduce the tar levels of cigarettes, promoted these cigarettes to smokers, put pressure on manufacturers to reduce tar levels, and developed new strains of tobacco with lower tar-nicotine ratios suitable for use by Canadian tobacco farmers. (Exhibits 40239, 40347.22. 40346.273. 40348.19)

 *The government was supported in these efforts by the public health and medical community, by parliamentarians and by researchers in the field. (Exhibits 40346.202, 40346.69)
 * The tobacco industry participated in the search for less hazardous tobacco leaf,  but the government was reluctant to enter into too close a partnership and wanted to retain leadership of the strategy. (Exhibit 40333. 40347.88)
 * The government was proud of its accomplishments in developing new strains of tobacco. (Exhibit 40348.100)
*The habit-forming, dependence-creating or addictive qualities of tobacco were recognized by the federal government from the mid 1960s, although the term "addiction" to describe the phenomenon was only used beginning in 1989. (Exhibits 40348.19, 40288, 40347.374, 212)
*The government policy of promoting low-tar cigarettes was not abandoned until after 1999. 

Less hazardous smoking program logic model
These conclusions were ornamented with quotes from a seemingly endless flow of government records.

Caution: objects may be further than they appear

From an academic perspective, Mr. Perrins' historical narrative is an unusual contribution to public health history, benefiting as it has from unique access to previously-secret government records and from an unusually high level of financial support. (From his testimony yesterday about the hours he worked and his billing rate, I estimate that the budget for this effort was high by historical research standards at around a half million dollars).

But despite its length, Mr. Perrins' version of events seemed like an incomplete story. Some chapters of the government's response were told in great detail, but others were virtually ignored. There is no mention, for example, of efforts by departmental officials to obtain policy support for a more ambitious regulatory approach, the development of taxation as a public health tool, or the advancement of global innovations like front-of-the pack cigarette warnings. Nor is there any recognition of the internal contradictions, the inter-departmental rivalries or the policy confusion to which such complex issues are often vulnerable.

In the connect-the-dots nature of this trial, this witness laid down a sea of dots on a few parts of the picture, while leaving vast deserts on others.

Other omissions in Mr. Perrins' research were noted by Robert Proctor, the historian hired by the plaintiffs to critique the tobacco industry's historical reports. Mr. Proctor said that Mr. Perrins' refusal to consider the archives of the tobacco companies resulted in "a story of David without Goliath."  (Exhibit 1238)

Certainly Mr. Perrins' characterization of events felt different than that provided to the court earlier this summer by Denis Choinière, the quasi-official witness from Health Canada. Mr. Choinière contextualized many of the same events as being activities undertaken by public servants who lack authority to adopt more effective measures. Rather than the happy collaboration between Health Canada and Agriculture Canada presented by Mr. Perrins, Mr. Choinière said he had found "no impact" of health concerns on Agriculture Canada's research program.

Mr. Perrins may not have considered that the false hopes of the government lead it down the blind alley of a "less hazardous cigarette program," or that these were merely activities which substituted for action until the political climate allowed the health ministry and the public health community to plan for legislative change. Although he acknowledged that this strategy was abandoned, he drew no inference that the government may have ever viewed it as a wrong policy turn.

The cross examination of Mr. Perrins will take place tomorrow.