Tuesday, 22 April 2014

Day 228: The paper chase

The testimony of marketing professor David Soberman had been interrupted by the four-day Easter holiday. But it only took a few sentences of his resumed testimony this morning before the Montreal tobacco trials were again transformed into a lecture hall for marketing practices.

In advertising, it is said that repetition is the soul of persuasion. Mr. Soberman seems to have taken that to heart. His testimony since last Wednesday contained so many repeated ideas, repeated catch-phrases and repeated examples that my notes on his answers all began to look confusingly alike.

Take that, Rick Pollay!

Mr. Soberman's appearance at this trial is on behalf of JTI-Macdonald. Doug Mitchell, who is counsel for this company, used the first half of the morning session to complete his questions to Mr. Soberman.

Almost all of his questions served to give his witness the opportunity to explain why the plaintiff's marketing expert, Richard Pollay, was wrong in his assessment of the intent or impact of tobacco advertising.

The detailed level of this exercise made me wonder if this might not be a continuation of a grudge match between Mr. Mitchell and Mr. Pollay. For the past quarter century, Mr. Mitchell has been trying to convince judges to reject Richard Pollay's conclusions about the ways that tobacco advertising reassures smokers, provides friendly familiarity, induces people to start smoking and discourages them from quitting.

Both men squared off during the industry's constitutional challenges to federal tobacco ad bans, both of which began in this very same Palais de Justice. In 1995, Mr. Mitchell's team won, in that the Supreme Court was not convinced that a total ban was necessary. Twelve years later the victory went to the government, for whom Mr. Pollay was again key witness.

(If Justice Riordan finds it odd that he is being asked to re-hear the question of whether advertising influences young people to smoke, even after the Supreme Court has ruled that it does, he has not objected. But for a man who manages to look interested even when it must be very difficult to do so, he has allowed himself to look uncharacteristically unreceptive to the testimony about marketing given over the past days by Mr. Soberman and Mr. Heckman. Perhaps, like me, he thinks this is a chose jugée!)

Nothing wrong with marketing of lights

The use of the terms "light" and "mild" are no longer used on cigarettes sold in Canada, at first as a result of a voluntary agreement between the federal government's Competition Bureau and the companies in 2006, and more recently as a result of federal regulation.

Mr. Soberman was asked whether he felt that such terms were intended to or had the effect of offering smokers false reassurance or encouraging those thinking of quitting to keep smoking longer. He said no, and provided a lengthy set of reasons why not.

He said the advertising had no effect, because consumers already had it in their mind that such products were safer, and that the information that led to this belief came at a prior time from governments and health authorities. "Government is perceived to be a credible source of information ... it largely explains the association that people have between lower tar and nicotine and reduced health risks."

Companies marketed lower tar products not because they were trying to influence smokers, but because they were forced by smokers' preferences for these brands to do so. "If they didn’t have low tar products they would lose market share to the other companies." 

He pointed out that low tar brands had existed from the 1960s, but that the use of the descriptor "light" emerged in the 1970s to make it easier for consumers to find a brand they wanted.  "It facilitates consumers of an existing brand finding a product that meets that need [for a lower tar product] while at the same time providing a promise to consumers that the taste and flavour associated with the brand they are smoking will be part of the offer in that new light product."

Nor was any suggestion that JTI may have made to smokers about switching to low tar cigarettes instead of quitting likely to have delayed quitting - not even their "To smoke or not to smoke" ad for Vantage cigarettes.  (Mr. Soberman seemed embarrassed at having inserted an American version of the ad, shown below, in his expert report.)

"The target of the Vantage campaign was a segment was called 'concerned smokers' – people who were concerned about the health risks of smoking. One of the ways that this group of smokers could address the health risks was to find a cigarette with lower tar or nicotine. ... The headline reflects the mental things they might have been thinking about smoking."

Besides, it wasn't a good ad -- "too much copy".

He said that quitters would  not be influenced by such an ad. For one thing, they would not pay attention to it. He thought a conscious and unconscious reasons would push recent quitter into avoiding even looking at cigarette ads: "People who have just quit will want to avoid thinking about the pleasure they miss." 

Even if someone thinking about quitting did read the ad, it would not affect their decision to quit. (Judge Riordan seemed quite skeptical about this assertion. His questions to the witness on this point felt like a credibility-losing exchange).

Nothing wrong with anything else either!

In a similar vein, Mr. Soberman was given an opportunity to explain why there was no harmful effect from marketing cigarettes in lighter coloured packages, or using lifestyle advertisements. He compared such marketing activities to those of products like toothpaste. Nor could cigarette ads change the social acceptability of smoking.

Sponsorship campaigns were "weaker and less effective" than brand advertising, he said, and even more so for tobacco sponsorship where the product not be shown.

"Lots of people will look at the ad and not be aware it is an ad for a cigarette," he said, when shown an example of JTI-Macdonald's "go your own way" sponsorship campaign from the late 1990s. Export A, he said, was not like Coca Cola, where everyone knew the brand name.

 "Those are my questions" concluded Mr. Mitchell mid-morning. For the rest of the day, the questions were put to Mr. Soberman by plaintiff lawyer, Philippe Trudel.

Documents! Documents! Documents!

An underlying theme of Mr. Trudel's questions was the fate of marketing documents at the company which has variously been known as Macdonald Tobacco, RJR-Macdonald and JTI-Macdonald. In particular, he wanted to suss out whether there were documents that Mr. Soberman had reviewed for his client, but which had not been shared with the plaintiffs, as would be required under the normal practices of disclosure.

To begin with, there was the 700 page summary of documents which Mr. Soberman had alluded to during the voir-dire last week, but which had not previously been shared with the plaintiffs. (This summary was provided over the weekend: it is now Exhibit 1742)).

Despite many questions and many answers, some confusion lingered about these many categories of documents that Mr. Soberman had seen or asked for. (I am still confused!). There were also the references to documents about Tempo cigarettes, and conflicting accounts of how many documents related to that youth-friendly brand were ever disclosed. There were the documents he had  used when writing his report, and which were used as the basis of his conclusions about the motivations and intentions of the company, but which he had had not been identified or shared with the plaintiffs.

Summaries of documents
were prepared by lawyers
for their expert witness
In reviewing the company documents, Mr. Soberman was assisted by "two junior lawyers working at Freshfields": - Simon Duncombe and Andrew Austin. It was they who had access to the company database of records, and who provided him with paper copies of the records on demand. Their "directed summary" looked for items on the documents that were identified by Mr.Soberman. "I had no reason to think that there was a set of documents hidden from me."

No market pre-test? Or no documents remaining?

Mr. Trudel hinted at an even more suspicious hole in the record: the absence of any pre or post marketing studies for Export A Extreme Sport Series. How likely was it that a company would engage in such a massive marketing endeavour without having found out how consumers would react?

For a man who spoke at such length about professional marketing standards, Mr. Soberman seemed unconcerned about the absence of any such record. "In hindsight, maybe it is something they should have done, but I didn’t see evidence of it having been done," he said. "I trusted in good faith that had they existed they would have been produced to me by the research assistants."  

If he grasped that Mr. Trudel was hinting that the documents had been destroyed, he did not show it!

Not even when Mr. Trudel showed him a memo from 1978 (Exhibit 656) referring to the "monumental task" of obeying instructions from head office "to purge our files. of references to ages below 18 years" did he seem to clue in that this might have involved more than the "six, seven or eight" documents he had found that had been affected.

"Based on this document there was a search conducted to see f there was any evidence of purging or changing documents – and there was no such evidence," he said. "The idea that they had been purged or were in a safe being withheld from me seems far-fetched."  

Making smokers happier

Mr. Trudel asked Mr. Soberman whether his views that marketing contributed to a happier society also applied to the marketing of cigarettes.

Mr. Soberman prefaced his answer by saying that he acknowledged the health consequences of smoking, and that it "has led to people having health problems they would not have were it not for smoking." But yes, he said, advertising would have made smokers happier.

"In terms of the extent that attractive images make people feel happy or have higher levels of utility, given that they are smoking, for those people it gave positive effects when it was done in the 70s and 80s."

Retail availability increases sales

Mr. Trudel asked Mr. Soberman to draw on his experience in marketing bubble-gum for Nabisco to describe the ways in which retail displays influenced sales. I think the record of Mr. Soberman's answers will be more useful to health regulators than to his client.

He acknowledged that counter displays are "an important part of generating sales, for sure."  

And although he did not think that his media comments about PepsiCo applied to tobacco companies [Exhibit 1640], he did allow that the similar logic of availability to youth could increase use. "If they [cigarettes] were not available in the places near to them, the rate of smoking would have been lower than it was."

So many questions, so little time

Mr. Soberman is a witness in demand: the plaintiffs indicated today that they had a day or more of questions for him.

Justice Riordan strongly discouraged his running overtime, cautioning Mr. Trudel against being inefficient in his questions, and reminding Mr. Soberman that it was not necessary for him to repeat his explanations. "I realize you are being a professor and I respect that - but I am being a judge and I am trying to get through a trial!"

The cross-examination of Mr. Soberman continues tomorrow - perhaps for the last day.