Monday, 17 November 2014

Day 250: The Defence Rests

Today was one of the most pleasant days to sit and watch the tobacco companies present their defence during the Montreal tobacco trials. And not just because it was the last one!

It was up to the Craig Lockwood to present the reasons why fault should not be found with the way that Imperial Tobacco marketed its products, or with the way the companies worked together over decades.

When Ms. Glendinning and Ms. Côté earlier presented ITL's case, it mostly sounded like a reading of their written arguments into the record.

Craig Lockwood
Mr. Lockwood chose a more conversational approach. As Justice Riordan engaged with frequent small interventions, it was often a dialogue -- and an interesting one to observe.

(Justice Riordan at times gives the impression of mentoring this young-ish lawyer. When the others overstate their case, the judge scowls -- but when Mr. Lockwood does so, he is corrected and given an opportunity to restate his position.)

Playing dominoes

One of the plaintiffs' arguments is that the cigarettes are so overwhelmingly harmful that to sell them should be censured under the provisions of Quebec law which forbid people from harming one another.

ITL lawyers have aligned this idea against other parts of the case, suggesting that if Justice Riordan does not accept that selling cigarettes is a fault, then he cannot find fault with the way they were sold. They seem to have identified this as a big weak argument that can be pushed in a way to make other concerns disappear.

Craig Lockwood took this approach as he addressed the evidence of his clients' activities with young smokers or new smokers.

"All  of the arguments collapse on the starting premise that marketing cigarettes is wrongful. If that falls away, the others will fall away."

Let me be explicit. Cigarette ads are not implicitly misleading.

Mr. Lockwood took issue with the idea that lifestyle advertising or other forms of advertising could have left smokers with a false impression about the products they were buying.  "Lifestyle advertising is not particular to tobacco. The fact of lifestyle advertising cannot be a fault." 

And trying to increase the social acceptability of smoking and make people think it was an okay thing to do? "That's what advertising is. That's what it does."

Moreover, there was no evidence to support that marketing had a negative impact. "You don't have a class member or a fact witness who said "this is the impression I got".

He said that the federal government had "dismissed out of hand" the idea that lifestyle advertising should be constrained - citing from a 1977 memo by a senior Health and Welfare Canada official who felt an advertiser "cannot be charged with misleading advertising because he puts his best foot forward and avoids mentioning the possible consequences of using his product." (Exhibit 20137.3)

(The fact that only a year earlier the Minister of Health had written the companies to request that they "Eliminat[e] promotional activities that depict a lifestyle, person or environment instead of being confined to a description of the product" (Exhibit 50001) seems to have slipped Mr. Lockwood's memory!)

The role of government underpinned several of Mr. Lockwood's submission:
* The government was the one who started, and who asked the companies to spend a disproportionate share of their marketing dollars on light cigarettes.
* The government protected the use of "light" as a term that could be used on cigarette packages (Exhibit 21333).
* It advised Canadians to use lower tar brands to reduce lung cancer risk as late as 2002. (Exhibit 30037).
* By allowing advertising, the government allowed the spillover of ads onto a young market.

Innocent until proven guilty. Until it is banned by law, it is not wrong.

As Mr. Lockwood's arguments began to coalesce around the view that as long as tobacco advertising was not banned, there could be moral issues but no legal fault assigned to the way it was sold, Justice Riordan raised the issue of the voluntary code and internal policies of the companies to not target youth.

Only to the extent that it is socially inappropriate, Mr. Lockwood replied. "It can't be the purpose of the courts to be a moral litigant. .... This court is here to sit in judgment of the law, not of the morality." There should be no legal response "until it rises to the level of being wrongful in law."

To this, Justice Riordan gave no indication of agreement.

Viva viva voce!

Mr. Lockwood reminded Justice Riordan that the evidence that had been provided by former employees of Imperial Tobacco was markedly different than the written records from the marketing department.

"Their [the plaintiffs] argument rests on a documentary records," he said before giving his reasons why what was written by marketing officials should not be considered as reliable as the later recall of the men who had directed the work.

Project Viking (which, among other things tried to figure out how to change smokers' views about smoking and health) was "a conceptual project that never extended into marketing."

The writings of Bob Bexon were "theoretical reflections" of a man who was on the outs with his boss.

None of the ITL witnesses had been able to identify that "CRY" stood for "Consumer Research Youth". This shows how unimportant this area of research was, Mr. Lockwood said -- much less than 1% of the total research effort.

The visuals

Curiously, very few ads were shown during the first years of the trial. It was only in these final arguments that there has been a competitive display of how cigarettes were advertised.

Cigarette advertising
as presented by
Mr. Lockwood.
Mr. Lockwood showed a half dozen black-and-white versions of ads, most of which showed only the cigarette package. He contrasted these with the "snippet" or "handful of documents" that the plaintiffs presented during their closing arguments. It would be wrong for Justice Riordan to think that the more contentious ads shown earlier were representative of the company's marketing.

The plaintiffs didn't even provide information on when the ads ran -- in which publications or for how long -- let alone whether anyone actually saw them.

He pointed out that the companies had constrained their marketing activities -- putting ads only in publications with a 75% adult readership (later 85%), and took themselves out of the broadcast market.

Damned if you do, damned if you don't

Mr. Lockwood referred to a few issues in which he said the companies were put in the position of being condemned for taking actions that they would be condemned for not taking. 

They had not assessed whether their ads would appeal to youth -- but would they not have been pilloried for doing research on youth? Their financing of research was considered suspect - but would they not have been condemned for not supporting research? Their programs to discourage sales to youth by retailers was criticized -- but so would the absence of any such programs.

Not a conspiracy. Just businesses and trade organizations.

Mr. Lockwood limited his presentation on why the companies could not be considered to have "conspired" to impede smokers from learning of the dangers of smoking to the role of inter-corporate structures.

The CTMC, he said, was only a "trade organization" and was separate from the company. "It has its own executive, its own employees." Even if there were wrongdoings by the CTMC, they "cannot be immediately visited upon the companies."

Exhibit 20326
He showed again a document that has been much-cited by the defence  -- a memo from Judy LaMarsh asking the companies to make a joint representation to the 1963 Conference on tobacco. Each of the companies has presented this as a request by government for the companies to create an ongoing coordinating agency. Be careful what you ask for, indeed!

(Justice Riordan said that he thought "it makes very little difference" who started the CTMC.)

He reminded Justice Riordan of the parliamentary privilege that was claimed for the positions taken by the companies before parliamentary committee. If the judge were to find them relevant, he should keep in mind that they were not "akin to a media event" and that they should be "judged by the standards of the day".  (Was lying to parliament more acceptable in 1964 than in 2014? good question!)

As for the international tobacco organizations ICOSI and INFOTAB which had been "dragged into" the proceedings - these clearly had little impact in Canada. He pointed out that ITL witnesses could not remember what they were -- and that minutes of CTMC meetings show that actions recommended by ICOSI was considered "inappropriate" for Canada.

To support his view that ITL was independent of its (now fully owning) parent, BAT, Mr. Lockwood referred to the share distribution.  BAT never had de jure control of the company.

Justice Riordan did not let him get away with this one, but was very gentle in pointing out that the shares owned by BAT-controlled entities exceeded 50% and that in a publicly traded company, the threshold for controlling interest was much below 50%.
Exhibit 2000.1

Mr. Lockwood had the sense to back down. "I am not a corporate lawyer."

He pointed to the high-level disagreement about Project Day as an example of ITL's independence.

And then it was over

Given this would be his last opportunity to address the judge, Mr. Lockwood expressed his appreciation for the opportunity to appear over the past two and a half years. Justice Riordan, in turn, thanked Mr. Lockwood for his efforts. It was a nice moment.

A nice moment ruined somewhat when Deborah Glendinning rose to give her "umpteenth verse, same as the first" wrap up.

By the speed with which everyone packed up their bags and vacated the room, it was a checking-out moment.

This Friday a hearing will take place on the confidentiality that should be given to some exhibits. The plaintiffs will present their rebuttal arguments on December 8, 11, 12 and 15.

This post has been back-timed to provide consistency in editing