Tuesday, 21 October 2014

Day 244:The history of tobacco in Canada: JTI-Macdonald's counter-narrative

The second day of Guy Pratte's presentation of the closing arguments for his client, JTI-Macdonald, was much as he promised: a speed-reading of the detailed (940 page!) brief that was submitted to Justice Riordan about a month ago.

The focus today was on the response by JTIM to the questions posed by Justice Riordan about knowledge of the harms of smoking, on the company's public statements about those harms, and the efforts undertaken towards the development of a safer cigarette.

Not surprisingly, his comments lined up tightly with the legal argument he had presented yesterday, and which he said should restrain Justice Riordan from finding that his client had caused any harm to which legal liability could be attached on a class-wide basis.

Today was the first day that a defendant company had presented its views on "the proof" (Mr. Potter, who presented the defence for Rothmans, Benson & Hedges earlier this month, had not commented in much detail on the testimony and exhibits that establish facts.) In this first airing of the companies' version of events, there were clearly different tellings of the story. You say tomato. I say Swiss cheese.

What did they know and when?

Justice Riordan had asked each party to answer the questions of when did the public, the government, the public health community and the companies "know about the health risks associated with tobacco use."

At the time this outline was offered, JTIM's team had expressed their concerns -- and today it was clear that even six months later they do not like the way these questions are framed. It does not matter when the company knew, they say. It does not matter what people knew or believed. It only matters whether they were AWARE that such issues were being talked about.

In JTIM's view, for the past 5 decades or more class members "were or ought to have been aware of serious risks and dangers of smoking ... including that smoking may be difficult to quit." Once aware, the decision to take the risks or not was properly that of the smoker.

To support his view that smokers were aware, he pointed to government actions to advise Canadians about the health risks and  to news stories about those risks.

He seemed to put a great store on two Health and Welfare publications on smoking - one from 1940 and one from 1964 (Exhibits 40346.20 and 40123), and noted that after 1963 the government was satisfied with level of awareness. At this point, he said, the government's strategy and actions evolved towards dissuading people from smoking: a whole different kettle of fish.

His review of the media coverage was reminiscent of the presentations by their expert historians, Jacques Lacoursiere and David Flaherty: a series of news story headlines flashed over head. "Virtually every time you opened the newspaper or turned on TV"  you were likely to see a report on the health risks of smoking, he said.

Everyone was aware. 

On the basis of these news-stories, the historians were reasonable to conclude that there was widespread awareness, said Mr. Pratte. And the polling results from the period supported this conclusion.

While not conceding that it mattered whether people believed that smoking caused disease, Mr. Pratte argued that the evidence showed that they did. He pointed to the plaintiff's claims that a large percentage of people did not agree with statements about causation to turn the numbers around. Not reasonable to say that 1 in 5 did not know, if one could equally say that 80% did know. 

Mr. Pratte argued that after 1980, when
Consumer Protection Act came into force,
most Quebecers believed that cigarettes caused cancer 
Again, he drew a line in the temporal sand, stressing that levels of knowledge were higher when the Consumer Protection Act was in force (after 1980), and therefore it would be unreasonable to presume that smokers were not in possession of health information missing from cigarette advertisements.

As Mr. Potter had done earlier, Mr. Pratte pointed to Mr. Viscusi's studies as proof that Canadians overestimated the harms from smoking. (Justice Riordan has read and ruled on Paul Slovic's report that repudiates this study, but this is not in evidence).

The plaintiffs must prove that everyone was not aware. They didn't.

Reinforcing his argument against a collective award, Mr. Pratte said the Judge could not conclude that the "entirety of the class" was in a position of not knowing. It is "undeniable - beyond dispute, beyond argument - that a huge majority of people believed in the very serious risk of tobacco, including youth."  

He applied a similar analysis to the issue of addiction. All class members were, or should have been, aware that it is hard to stop smoking, and they were aware before they started to smoke.

Attribution of messages.

The health warning messages on Canadian cigarettes have, for most of 40 years they have appeared, been attributed to the Health Ministry (now Health Canada, formerly National Health and Welfare). 

Mr. Pratte refuted the plaintiffs' position that the refusal of the companies to make direct statements about health risks was a factor the judge should consider. "There is no evidence in this case that unattributed warnings would have made a difference."

Justice Riordan challenged his position that "Mr. Munro had no difficulty with the attribution that was settled on", recalling that the evidence showed the government's preference for attributed warnings. Mr. Platte responded that the government "had a stick that no-one else had" and that they "always had the last word."

Everyone was aware -- even ahead of a scientific consensus.

There were a few occasions during today's speed reading that I think I lost sight of the plot line. One of those was when Mr. Pratte took exception to the plaintiffs' statement that a scientific consensus had emerged during the 1950s about lung cancer's causal relationship to smoking.  Had he not just spent the good part of the morning arguing that everyone knew?

But no, it would appear that JTIM's defence also claims that the government was ahead of the medical community as a whole in 1963. And they were certainly ahead of the company. 

"There is not not an iota of evidence that JTIM knew anything more than the government of Canada before 1974 or after. What you have is massive awareness and belief in the class period, no evidence that JTIM knew any more, and crucially no evidence that an earlier or different warning would have made any difference to any, let alone all class members."

Silence is not denial!

Mr. Pratte showed a series of statements made by executives of Macdonald Tobacco, RJR-Macdonald and JTI-Macdonald, and said that, barring an inadvertent omission, this was the entire record of communications on smoking and health.

In doing so, he discounted each one.  A privileged statement (made before parliament). A comment to a health agency executive, who was unlikely to be misled. Comments to employees, unlikely to be read outside the company. Statements made about a program that never ran in Quebec.

This was not enough to conclude that the company denied the health risks, he told the judge. "The 10 minutes it took me to go through that statement - even if I missed a few - cannot amount to a grand denialist campaign from 1950 to 1998."

Low tar cigarettes, compensation and hole blocking.

Mr. Pratte moved mercifully quickly through the long trial record of federal government actions aimed at reducing the amount of tar and nicotine in cigarettes. The genesis of this idea came from the health community, and was led by government. He reminded Justice Riordan of the beliefs of MAH. Russell and others that tar levels in cigarettes should be reduced.

He cited from the testimony of former Health Minister Marc Lalonde, to the effect that it had indeed been a goal of government to move smokers to these products.

A criteria set by government (not the companies) was that the result of product modification be  "a product that users would use". This is why a nicotine-free cigarette was not developed.  "That was the government's own conclusion  - that there had to be some nicotine in those products otherwise smokers would just go back to their original brands." 

The companies never concealed knowledge about compensation, and it was the government which first identified it as a possibility. But even with compensation, "overall there was the conclusion that there was some benefit" to having lower-tar cigarettes.

To these ears, it sounded like an admission that JTIM manufactured cigarettes that allowed for the ventilation holes to be blocked when he minimized their impact.  "The popularity of these brands declined during the class period -- you can't say people became addicted as a result of these cigarettes."

Tomorrow Mr. Pratte will respond to the allegations that JTIM improperly marketed its cigarettes and that it conspired with the other companies.