Wednesday, 11 December 2013

Day 193: Protecting Canadians from gobbledygook

I felt some excitement this morning at the Montreal tobacco trials. The witness today was Mr. Bert Liston, a man who was once in charge of the health protection of Canadians butwho subsequently aligned himself with the tobacco companies.

Mr. Liston is the third official from Health Canada who has been called to testify during the "Defence proof"  - the others were Marc Lalonde and Denis Choinière. He is, however, the only one of these men who has ever worked under contract to the companies.

From the time he received his PhD in stereochemistry from the University of Montreal in 1964 until his retirement from Health Canada in 1992, Mr. Liston worked entirely within the regulatory science department that was then known as the Health Protection Branch.

For the last 8 years of his public service career he was Assistant Deputy Minister - on the organization chart there was only one person between him and the Minister of Health, and about 2,400 positions that reported under his authority.

Mr. Liston would have managed many challenging files -- medical devices like breast implants, a blood supply that proved to be contaminated, pesticides, food safety -- and tobacco regulation.  It was during his tenure at the top of that branch that Health Canada introduced the first legislative and regulatory controls on tobacco products. And it was in defence of those laws that Mr. Liston testified 24 years ago before a different judge of the Quebec Superior Court.

Mr. Liston no longer testifies against tobacco companies, but has testified on their behalf on at least three previous occasions.

In 2004, he helped Imperial Tobacco against an unsuccessful attempt for a class action on light cigarettes in Newfoundland, and against a successful one in British Columbia. Four years earlier, he had testified on their behalf in a suburban Toronto small claims court during the attempt of Joseph Battaglia to claim damages and an apology for having been misled about the level of nicotine in Matinée cigarettes.

It was in connection with that earlier appearance that I had first met Mr. Liston. Twelve years later, he is now much older. Not only in his age (80 years), but also in his slow movements, fading voice and tendency to answer the question he thought he heard rather than the one he was asked. (If he has hearing aids, he did not wear them to court).

There was also an air of self-protection to his answers that I associate with men who have been sidelined by age - like a member of the Legion whose understanding of global conflict has failed to move past the era of their demobilization.

A brief reunion 

It was Ms. Deborah Glendinning who had questioned Mr. Liston during the Battaglia case, and it was Ms. Glendinning who was at the front of the court prepared to do so again this morning. She has not been seen in this court for 3 months, but no one seemed to think to welcome her back.

She began by asking Mr. Liston to talk about his work as a consultant to the tobacco companies, and giving him an opportunity to say that the insights and advice he gave never entered into the area of lobbying. Later, he sad that about 15% of his consultancy work had been for the tobacco companies. And no, he had never lobbied government on behalf of the tobacco industry. (His CV is at Exhibit 21041)

There was a surprisingly short set of questions prepared for this witness, and the plaintiffs were surprised that her questions wound up before noon. Of the 60 or more exhibits quickly entered before he began testifying (They will be numbered from 20974 to 21041), only a handful were actually shown to Mr. Liston.

Can't quit? Change how you smoke - and what you smoke

When asked to explain what the Health Canada's policy on tobacco was, Mr. Liston said that both before and during his time there "the health department was advising Canadians to not smoke," but that "if they were unable to stop smoking [they should] try and reduce their exposure by modifying their smoking behaviour."

He did not, at this point, identify the low-tar brands that have been the focus of so much discussion in this trial, but mentioned ways that smokers could change their smoking behaviour. "In other words don’t take as many puffs, don’t take as deep a puff, throw a way a longer butt, don’t smoke down to the very last bit."

It was only when Ms. Glendinning asked directly that Mr. Liston agreed that Health Canada "always carried that message" that low tar and nicotine products are less hazardous. "They very much asked Canadians to modify their choices to go to the lower tar and nicotine and carbon monoxide cigarettes."

The choice to smoke

Mr Liston was shown a 1973 press release that encouraged smokers to see that lung cancer and heart disease were both "often diseases of choice. It is up to the smoker to avoid them." 

His answer was an unusual admission from someone who had carried such a high level responsibility to protect health. He said that "each individual is responsible for the food they eat, the cigarettes they smoke, the drugs they take." 

A good relationship and a responsive industry 

Mr. Liston saw the relationship between the department and the companies as "a respectful relationship, a business relationship," similar to those he had experienced between the department and food, drug, medical device and other regulated industries.

On the specific example of the government's request for the companies to lower the average amount of tar, nicotine and carbon monoxide in their products, Mr. Liston said that "in the main [the companies] cooperated and were able to bring the levels within the targets."  One reason for the high level of compliance, he suggested, was the threat of regulations.

He said the industry had complied with the requests made of them by Minister Jake Epp, whom he described as taking a more forceful stance with the companies. But even when that force came in the form of legislation, Mr. Liston said it "was not because of any transgression by the tobacco industry."

The Minister over-ruled the scientists.

Mr. Liston made a clear distinction between the scientific work of his branch and the "social" approach of other areas of the department, and the "political" decisions of the ministers office.

"The Health Protection Branch was the scientific regulatory focal point within the department. It was our view within that branch that we provided unbiased scientific information and any recommendation based on science. ... It was incumbent on us to try to provide unbiased information because the Minister had a number of staff people who would look at the political ramifications of what was coming forward  - he would make a recommendation on whether he wanted to accept straight science or modify it."

"We did not to want to move away from that to go into what was deemed to be more politically acceptable – it was strictly speaking the science. Any other modifications would be done by the Minister."

Which is why a tobacco law was passed

Mr. Liston said that before 1988 there was pressure from advocacy groups , but that his branch had not seen the need for more stringent regulations on tobacco products. In 1983 the department decided against bans on advertising,(Exhibit 20980, 20981). It was "a political decision on the part of a minister" that led to a more formal regulatory approach. (The Tobacco Products Control Act was passed in 1988). 

He cited two reasons he thought a law was not necessary. 

"We were getting what we wanted from the industry. The other factor was that other countries had gone forward with more aggressive programs and in some cases with advertising bans and these were not found to be very effective. Smoking uptake in those countries did not drop as a result of a ban on advertising. There was some thought that it was not an effective procedure or process."

The government's duty to warn and to provide some information ...

The term "duty to warn" is not discussed in this trial as much as one might think. Few witnesses have spoken about this responsibility - and Mr. Liston is the second former health official to agree with a tobacco industry lawyer that this is a duty is born by government. (The first was former Health Minister, Marc Lalonde.)

The first warnings appeared on Canadian cigarettes in 1972. Mr. Liston said that at that time there was it was a "widely known fact" that smoking was dangerous. The reason for the warning, he said was "to reinforce it. It was through repetition that we were hoping to get behaviour modification - to drive home the point of the hazard and to get people to move away from smoking."

"There were limitations, of course that we had to be conscious of - the manufacturers had certain rights to their labels."

Don't confuse smokers with too much information

Mr. Liston did not agree that more information about the toxic contents of tobacco smoke should be communicated to smokers. (Exhibit 20991,20992) 

"Extensive labelling of toxic agents in smoke would not be usable information," he said. Too much information was "not useful and counter productive." 
"People will say 'I don’t know what all this gobbledygook is about.'"

... and don't tell them they are addicted

After the U.S. Surgeon General's 1988 report was focused on addiction, and Mr. Liston fought back against the use of the word "addiction" in relation to smoking. (Exhibit 40001, 40346.373, 40346.381) It is a position he defended today.

He said that there were many who supported his view that this was an inappropriate word to use, and that it was better for smokers to speak of dependence, or habituation. 

"The term 'addiction' brought forward the idea of people that were incapable of functioning in society in a satisfactory way because of the sweats or withdrawal symptoms, and also the needs to find funds to nurture that addiction. A lot of addicts were criminals. This connotation of addiction was troublesome. the medical community went instead to the term that did not have that connotation associated with it."

"Dependence was a better way of describing the way that people would become attached to their smoking habit. Addiction was not the term that we wanted to use." 
He also said it would be better for the government to avoid the term addiction as it "would call into question the integrity of the department." 

"There is a potential element of concern that Health Canada would be allowing the sale of addictive products in the open market and that could have some ramifications."  He saw problems in a "divergence" between the laws that controlled addictive nicotine and addictive narcotics.
Hoist with his own petard

Mr. Liston added some new details to the now familiar story of the Royal Society Report which recommended that the Canadian government use the term addiction with respect to smoking. It turns out the study was commissioned by Mr. Liston in the expectation that the opposite conclusion would be reached.

He thought the report would help stave off pressure that had been built as a result of the "very strong case" built by Surgeon General Koop, which Mr. Liston derided as being "based on his own personal views". 

"I was interested in trying to provide the minister with evidence from a credible professional society that ... we should  use the term other than addiction. I wanted the support of the Royal Society to provide coverage for the Minister. ... I expected them to come back and say 'dependence' or 'habituation' would be the way to go. That was my expectation."
It was not to be. In the fall of 1989, Minister Perrin Beatty received a briefing about the Royal Society's conclusions and gave a handwritten direction to the Deputy Minister: “As a result of this report, I strongly favour the proposed warning on packages.” (Exhibit 20987) 

It took another 5 years and 2 ministers before such a warning was required by regulation. Mr. Liston suggested that the time might have been required to allow the companies to adjust their packaging. 

Although he accepted the decision of the Minister, he never agreed with it. And nor, he said, did others who reported to him. (Exhibit 20988). 
Tomorrow, the fun continues. Mr. Liston's cross-examination is expected to take much of the day. On Monday, part of the trial moves to Vancouver to allow for the testimony of UBC researcher, Dr. James Hogg.