Wednesday, 16 October 2013

Day 175: More butter on the bread

See note on accessing documents at the end of this post.

It was another short day at the Montreal Tobacco Trials this morning. All eyes were on the clock, as there had been a commitment to wind things up by lunch time.

Perhaps this deadline was behind the apparent ceasefire on objectionable questions and questionable objections.  Or perhaps it was because Mr. Lockwood was back at the helm for Imperial Tobacco. Whatever the reason, the courtroom atmosphere seemed the better for it. Rarely has a morning felt as focused on the substance of the testimony.

Yet another retired Imperial Tobacco marketer was introduced to this trial.  But although it was his first visit to the courtroom, Mr. Neil Blanche cut a somewhat familiar figure.

He had the same bearing and loose big shoulders as his former colleague Ed Ricard, who testified last week. But these two men shared similarities that went beyond mannerisms, or being youthful retirees who look like golfing buddies. They also both showed a detached and hard-boiled attitude towards the business they were in.

Witnesses like Mr. Kalhok might acknowledge the controversial nature of selling tobacco - but not these men. Mr. Blanche repeatedly referred to "the decision to smoke" - even describing the onset of smoking by a 13 year-old in this way. There is a kind of person who is drawn to sales, perhaps.

Mr. Blanche's 29 year career at Imperial Tobacco (1983 to 2012) mostly overlapped the Ed Ricard's time at the company. The two men worked in related areas -- Mr. Blanche started as a salesman in Nova Scotia and then moved to headquarters. Eventually he was in charge of "marketing communications".

That is to say, he was the man who was in charge of the placement of advertising. It soon became clear that this was why Mr. Lockwood had asked him to testify.

Changing the channel on TV Guide

Last week, when Mr. Lockwood asked Tony Kalhok whether people under 18 had ever seen Imperial Tobacco ads, he got rather more in the answer than he might have hoped.

Mr. Kalhok reported that Imperial "took the advertising out of TV Guides, because kids watch TV." Although the voluntary code would have permitted ads in this magazine, he said the company decided to opt out - and eventually "it became an industry agreement - we would not advertise in that particular magazine."

Exhibit 300
The problem for Mr. Lockwood is that it does not take long to find examples of Player's advertisements appearing in TV Guide or to find marketing records (like Exhibit 300 and 292-82) which showed that a few years after Mr. Kalhok left the marketing department,  the company was planning to put ads for Player's cigarettes in TV Guide to reach their "target" of youth as young as 12.

Much of Mr. Blanche's 90 minutes with his company's lawyer was spent trying to explain this  away.

Mr. Lockwood's intent, as I understood it, was to show that it did not matter that the company had targetted people under 18 in their media plans because, as it turned out, all of the ads placed were in publications that met the voluntary code criteria for readership. (Mr. Blanche testified that in the 80s the rule was that a publication had to have at least 75% adult readership, and that this was bumped up to 85% at the end of the 90s. The only evidence referred to for this was a non-public interpretive section of the CTMC Code, Exhibit 40005S)

To validate this view, a copy of the 1983 Print Measurement Bureau report was introduced (Exhibit 20307 - 33Mb file!) It did indeed show on page 26 that only 16% of the readership of TV Guide and TV Times was aged 12 to 17. 

Mr. Blanche was asked to note that the adult readership for TV guide was well above 75%. Prior to coming to testify, he had been asked to calculate whether these publications would also have met the higher 85% standard (the level later imposed by the Tobacco Act). Almost all of them did, Mr. Blanche testified.

Mr. Trudel protested faintly at this unconventional use of the witness, but Justice Riordan let the questions flow, saying that Mr. Lockwood was only "trying to butter the bread even thicker."

Most TV Guide and TV Times readers are adult 
but most youth read TV Guide or TV Times!

Mr. Lockwood may have been counting on the PBM report not getting a second look.  

The table he used to show that TV Times and TV Guide had only a 16% youth readership also showed the actual proportions of young people who read these magazines. The table suggested that about half a million  young people read TV Guide or TV Times (439,000 and 435,000).

Philippe Trudel focused on this point as he began his cross-examination. Let's just say that the courtroom is not the most numerate environment, and there were no pencils flying to confirm this calculation! Nonetheless, the numbers that have now been introduced by Mr. Lockwood may later serve other purposes..

Repetition is the soul of persuasion: we didn't target kids.

Mr. Lockwood took advantage of Mr. Blanche's presence to have him confirm the many ways in which Imperial Tobacco advertising did not target youth.

His testimony could not have flowed more easily if it had been rehearsed. "During your tenure, what was the target of marketing initiatives?" "Any adult smoker over the age of 18, with the sole intent to try to get business from the competition." 

He offered several examples of the measures the company took to avoid youth. The company did not place its ads in the 200 meter zone around schools ("as the crow flies"). The events they chose to sponsor were not particularly appealing to youth. (He identified the arts, golf and jazz but made no mention of car racing). "The events we picked were more geared to adults - anyone under 18 who wanted to attend would have difficulty as the tickets were expensive." 

Guiding all these restraints was the voluntary code brokered through the CTMC, which Mr. Blanche described as "our mantra." (The CTMC voluntary codes are gathered under Exhibit 40005, i.e. 40005N).

Buttering both sides

Philippe Trudel took charge of most of the cross-examination, and seemed to be aimed at also using Mr. Blanche's presence to build on evidence already presented.  

He adopted, however, a different technique than he had with most previous witnesses. He showed Mr. Blanche specific ads or marketing practices and asked him to explain how they were consistent with the voluntary code.

Mr. Blanche never indicated any agreement with Mr. Trudel's view that there were discrepancies between the rules and the company's behaviour.

* Posters that were displayed in stores near schools were consistent with the Rule 11 ban on posters because, Mr. Blanche explained, the definition of posters in the code was billboards that were 10 feet by 20 feet. (Remember this the next time you go to a poster store!)
* Models that were hired were, consistent with Rule 10, over 25 years of age. They all looked 25, he said.  But if you could not see the face of a whitewater rafter in the foreground of a Player's ad? No problem in terms of rules.
* Advertising could be appealing to young people and consistent with Rule 7's prohibition on ensuring that ads were "addressed to adults."  These were two different concepts. Addressed to youth would mean being placed in youth publications or similar places.
* The use of strong, healthy-looking models did not go against the Rule 8 prohibitions on implying that brands promote physical health, said Mr. Blanche. An ad which would be considered to promoted health would be one that "came out and said 'this product is better for you'."
*Similarly, advertisements that showed couples in romantic settings did not suggest that cigarette smoking was essential for romance. He gave as an example of an advertisement  that could be considered in this category: "a viagra ad."

Mr. Blanche may be the last fact witness for Imperial Tobacco (the fate of Mr. Barnes is still in question). Perhaps this 'last chance' was behind Mr. Trudel's use of Mr. Blanche's presence to introduce a number of new documents. Still more butter for the bread.

These included ITL budgets for marketing (Exhibit  1612) and thoughts on how to market through Pirate radio and US magazines if there were bans on advertising in Canada. (Exhibit 1611). Other exhibits entered today include: 1608, 1609, 1610, 1613, 1614, 20306, 20307

The trial resumes on Monday. Next week, Rothmans, Benson and Hedges will present their in-house fact witnesses. There is only one: Mr. Steve Chapman.

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.