Wednesday, 24 September 2014

Day 237: Non omne quod licet honestum est

As we left to grab a coffee during the morning break, my colleague blogger, Pierre, commented that the intensity level is increasing every day at the Montreal tobacco trials.  I couldn't agree more.

During their first two days of final arguments, the plaintiffs in the two class actions had set out the framework of their case that Canadian tobacco companies lied for decades about the harms of their products, and that these lies strongly influenced public understanding of the risks of smoking.

Today's focus was on how the tobacco companies promoted their products. (The heading given to this by Justice Riordan was: E. Did [the defendant tobacco company] employ marketing strategies conveying false information about the characteristics of the items sold?).

But before presenting his views on this, plaintiff lawyer Philippe Trudel elaborated on the legal view the plaintiffs are trying to persuade the judge to accept. This is the first time their request that the Judge rule it a civil fault to sell cigarettes has been verbally presented (it will be discussed more next week), and the courtroom seemed to stiffen at its boldness.

"It is important to understand our cause of action with respect to marketing. We say the simple fact of selling cigarette is a civil fault. If this is true, then the fact of adveritising them is also a fault. But if it is not a fault to sell cigarettes, that does not mean that it is not a fault to promote them."  

(He opened with the Roman law principle cited above -- "that which is permitted is not always honest")

Mr. Trudel referred to article 1457 of the Quebec Civil Code as the basis of their claim that the "faults" on the part of the defendant companies continue into the present, and are not only linked with past actions.
1457. Every person has a duty to abide by the rules of conduct which lie upon him, according to the circumstances, usage or law, so as not to cause injury to another.

Where he is endowed with reason and fails in this duty, he is responsible for any injury he causes to another person by such fault and is liable to reparation for the injury, whether it be bodily, moral or material in nature.

He is also liable, in certain cases, to reparation for injury caused to another by the act or fault of another person or by the act of things in his custody.
He also clarified what they were NOT trying to prove. "We are not making the case that a certain advertisement had a certain effect on a specific individual." He said that this could not be done, and that the companies view that it was necessary to do so was akin to their demand of proof that an individual's cancer was caused by smoking a particular brand of cigarettes. An impossible level of proof, he called it - probatio diabolica.

The inexperienced and credulous consumer

He reminded the judge that Quebec's Consumer Protection Act considers not only what manufacturers say about their products, but also what they omit saying, and how they behave.

"We need to look not only at what the words say, but how they are understood by the consumer And not a highly sophisticated consumer, but one who is inexperienced and credulous."  

A recent Supreme Court decision about how Quebec's Consumer Protection Act should be applied was subtly referenced, and the term "inexperienced and credulous" to describe consumers would be repeated over the day.

A useless product?

Mr. Trudel said that cigarettes were in a category all to themselves, the only product that had no use other than to alleviate the addiction it caused. But before he could move further with this idea, Justice Riordan voiced disagreement with two parts of this idea, saying that alcohol was an analogous product and that both alcohol and cigarettes were reputed to "give pleasure". He talked about the pleasures of a glass of scotch.

This was more than a casual comment. The view that cigarettes are "useless" factors significantly in the plaintiffs' arguments. Mr. Trudel provided his view on ways that tobacco differed from alcohol, but later conceded that the plaintiffs own expert in addiction, Dr. Negrete, had referred to the benefit of improved concentration experienced by smokers. 

(Curiously, the utility of smoking has not been much discussed in this trial. When I read this summer that the benefits of smoking were being argued in regulatory proceedings in the United States, I realized that notably absent from the companies' defence in this trial was any evidence of the benefits their products provide.)

If it's wrong now, it would have been wrong then.

Mr. Trudel pointed to several instances where types of tobacco advertising were acknowledged to be inappropriate. Among these were Imperial Tobacco's written arguments ("614. To be clear, ITL does not mean to suggest in any way that “youth marketing” in the tobacco context is somehow an appropriate or tolerable practice. On the contrary..."), and the trial testimony by ITL's president Marie Polet, in which she said it would be "very wrong" to suggest that some tobacco products were less harmful than others.

Before the trial startd, RBH president, John Barnett, had similarly said that encouraging someone to smoke "wouldn't be the right thing to do." (Exhibit 1721-080529).

"We agree," said Mr. Trudel.  "It is not the right thing to do ... When the president of a company admits that it is a fault, I think we don't need a much more elaborated explanation."

On some facts, the Supreme Court has spoken

Again today, passages from the 2007 Supreme Court ruling on tobacco advertising were read to the court.

Today's focus was the Court's findings that tobacco companies had "a long history of misleading and deceptive advertising," that there was a widespread practice of "promoting tobacco consumption by inducing consumers to draw false inferences about the safety of the products," and that "persuading teenagers to take up smoking was a calculated and deliberate industry advertising strategy."

Justice Riordan was not bound to accept these factual conclusions, Mr. Trudel said, but the burden was on the industry to provide new evidence that showed this was no longer the case. 

The views of experts  and the documentary record

Japan Tobacco was the only company to produce an expert witness on advertising and the Mature Market theory (Mr David Soberman). RBH never planned a witness on this topic, and the expert hired by Imperial Tobacco (Richard Semenik) was ultimately never called to testify. Richard Pollay testified about marketing on behalf of the plaintiffs.

Mr. Trudel suggested that a negative inference should be taken about the decision to pull Mr. Semenik, and that Mr. Soberman's views should be discounted in light of the limited access he had to documents, and that those he had reviewed were selected by lawyers.

Instead, he said, the evidence against the Mature Market theory applying to cigarettes could be found in the testimony of Richard Pollay and also on the documentary record. (In a 'Mature Market' advertising serves only to influence market share but does not affect overall consumption.)  He pointed to recent company reports that attributed reductions in consumption to advertising bans (Exhibit 577).

Mr. Trudel spent an hour or so demonstrating why he felt the record did not support the theory that tobacco advertising was aimed at brand switching. He likened the use of terms like 'young adult smokers' and 'under 25' to Orwellian "New Speak" - a vocabulary designed to cover the truth. 

He said that the company's drive to recruit their competitors' customers was eclipsed by their concern about people leaving the cigarette market altogether. He showed documents where ITL expressed the greatest anxiety about health concerns and quitting. "Quitting represents our biggest single source of sustained volume loss." Robert Bexon had warned before he became president of ITL" (Exibit 1110).

(It was the addictiveness of cigarettes that made this a gradual loss, Mr. Bexon wrote. Two years after trying to quit, 98% of Canadian smokers-but-would-be-quitters had relapsed.)

"A 98% failure rate? Is this not important information that should be included in promotions for cigarettes?" Mr. Trudel asked.  

Increasing social acceptability of smoking to forestall quitting was an industry-wide strategy that was implemented at a corporate level through lifestyle advertising, said Mr. Trudel. (Exhibit 116, 119.1, 292-88, 1132, 21). 

Promoting less harmful cigarettes

In their defence briefs, the companies have said that the advertising of low tar cigarettes was done with the direction/support/encouragement of the federal government. Mr. Trudel spent some time trying to lay this idea to rest. 

Manufacturers have a responsibility to know their product, he reminded Justice Riordan. However much it may have made "common sense" to think that filter cigarettes or low tar cigarettes were safer, the companies had an obligation to prove that claim before making it. Indeed, he said, their own research tended to show that they weren't safer - yet they did nothing to counter the view that there were health benefits to these products.

"Instead they hid behind the words of others [the government]. They tried to benefit from the misleading information, even though they knew it was false. Did they tell smokers that there was no health benefit to low tar cigarettes? No. They knew this belief would reassure smokers and prevent them from quitting." 

Mr. Trudel said that the core federal government message was never to "smoke safer cigarettes", but always was to "not smoke," and pointed to where this was validated by the defence expert on warnings, Mr. Young. He said that the federal government had never requested or supported the use of the term "light", and had instead objected to it being used on cigarettes with tar values over 10 mg/cigarette. (The term light was banned by federeal regulations in 2011).  

When they tested additives for safety, the companies showed they had the capacity to assess the relative harmfulness of changes to their cigarettes, said Mr. Trudel. But these tests were never used on filter or lower delivery products. "How can you promote a safety message if you don't test the cigarettes for safety?"

The companies may have agreed to not make overt health claims, but they also adopted policies which allowed for implicit claims. (Exhibits 1026, 129, 944, 243C, 1162). Such claims could be seen in advertisements, but also in package design, he said, pointing to their thoughts on plain packaging as evidence of this. (Exhibits 1680, 527).

Justice Riordan seemed sceptical of Mr. Trudel's opinion that filter cigarettes were no less harmful than non-filtered cigarettes. "Is it not better to have less tar?" 

"Intuitively, yes, but there is no proof," said Mr. Trudel. He showed a series of ads - from the late 1950s to the 1990s - where the special qualities of filter were promoted, said the companies had internally acknowledged these were "gimmicks" and that Justice Denis had described a 1997 filter innovation as "a ruse". 

A picture is worth a thousand words...

Although hundreds of tobacco advertisements have been entered as exhibits in this trial, very few of them have ever been shown in the courtroom. 

Today, after pointing to the strategies behind the ads, and after emphasizing the legal test of what an "inexperienced and credulous" consumer might think, Mr. Trudel took Justice Riordan through a selection of ads. 

For almost an hour, the overhead screens were covered with a variety of ads which promoted low tar brands, which associated cigarettes with healthy outdoor activities, with risk taking, with sporting events. 

Mr. Trudel asked the judge to consider an "inexperienced and credulous" person might make of these representations and how a young person might respond to the lure of the activities that were portrayed.

Well after the regular quitting time, Justice Riordan suggested that the rest could wait until tomorrow. He looked like a man who felt he deserved the pleasurable glass of scotch he had talked about earlier.

Tomorrow, Mr. Trudel will finish his presentation on tobacco marketing and the plaintiffs will begin their presentation on the ways the companies worked together.  

In the afternoon, Imperial Tobacco 's lawyers will present their views that some sections of the plaintiffs' arguments should be struck down and JTI-Macdonald's lawyers will present their concerns about confidential information in the plaintiffs' brief.