Day 188: Agriculture Canada's "Yes Man"

The Montreal tobacco trials resumed this morning with a commitment from Imperial Tobacco's lawyer, Valerie Dyer, to speed things up a bit. And indeed, she did. It was an activity-packed day, if not an action-packed one, as she quickly put document after document on the trial record.

I think a couple of hundred documents were filed over the past two days. They flew by so quickly, that it is hard to be sure how many - but eventually you can find them as the exhibits which follow #20783.

Many of these records from government archives will be of interest to those who care about public health policy or public administration. The tobacco companies which are defendants in these lawsuits can be credited, as awkward as it might seem, for assembling this large set of documents related to federal actions on tobacco, and for putting them into the public domain.

This material (including the records which supported the expert opinion of Robert John Perrins) does more than provide the basis for a Masters thesis or three. It also provides us with an object lesson of how ill-advised it is to put one government department in charge of the competing responsibilities of protecting public health and protecting the farm economy.

Well, the documents might tell a cautionary tale - but today's witness did not. Mr. Marks reviewed decades of government actions - some reversing previous ones - without once suggesting that any mistakes had been made.

The Less Hazardous Cigarette Program

This was the second and final day on the witness stand for the biologist who once headed Agriculture Canada's tobacco unit, Mr. C. Frank Marks. As he had done yesterday, Mr. Marks gave mostly one-word answers to the questions put to him. As she had done yesterday, Imperial Tobacco's counsel, Ms.Valerie Dyer, asked him questions that invited no more than a simple "yes" or "no".  (I am told that yesterday's transcript shows Mr. Mark answering "yes" to about 400 questions).

Mr. Marks nodded along as she showed him documents of the the workplan, budget and results of the department's efforts to increase the nicotine level in the tobacco plants grown in Canada. (Nine researchers and a budget of over $1 million in 1977!).

He agreed with her suggestions that - even after Health Canada had withdrawn from the program in 1978 -- the program continued to be guided by health goals. "As far as we were concerned, once Health and Welfare was out of it, we wanted to include the health aspects in our overall program."

But was the goal of the program to reduce tar or to increase nicotine?  Back and forth during the day, the understanding of Agriculture Canada's scientists was variously shown as one aiming to reduce the amount of tar for a given amount of nicotine, or one to ensure that an amount of nicotine was present, even if tar was reduced.

Mr. Marks explained that the "Less Hazardous Cigarette" program was based on "knowing that the filtration process was going to take out a certain amount of tar and also nicotine at the same time. The impetus for going to a higher nicotine type of tobacco was so that when you did filter the nicotine with the tar there was enough nicotine to satisfy the smokers."

A stiffly worded diplomatic note sent from officials at Health Canada made it clear that there were differing views between Mr. Marks and his colleagues in the other department about whether the organizing principle of the approach was nicotine or tar. (Exhibits 20862, 20863, 20864). But today Mr. Marks shared no insights into the importance of the diverging of opinions of the two departmental leads. He merely agreed with Ms. Dyer that the communications had not been continued.

The breeding program

Have almost two months passed since Mr. Gaetan Duplessis explained - at great detail - the breeding program that resulted in the registration of the various new Canadian tobacco varieties - Nordel, Delliot, Candel, Delgold, etc.? My how time flies.

These efforts were again discussed today. Mr. Marks' testimony was somewhat different than Mr. Duplessis, in that he stressed that the cultivars were not only aimed at changing nicotine levels, but were also aimed at increasing the farmers' yields and profitability.

He also put a greater emphasis on the engagement of stakeholders in the process of deciding on which cultivars would be promoted. He said that the department did not unilaterally register a new variety, and only moved forward with the support of stakeholders - growers, the companies and provincial government committees.

Tobacco varieties developed by Agriculture Canada
Exhibit 20875.1

An agreeable partnership

The documents shown today show a high level of collaboration and mutual support among Agriculture Canada, tobacco farmers and the industry.

With farmers, the department traveled to promote overseas tobacco sales (Exhibit 20887). With the industry, they participated in the trade organizations like CORESTA (Exhibit 20888.1)

Sometimes they seemed to go the extra mile to help each other out. When Mr. Marks was not permitted, by policy, to travel to Taiwan, a way was found to allow his comments to be shared in spite of this policy. They were printed on the farmers' letterhead, and circulated in his absence to ensure that the opportunity was not lost. (Exhibit 20855.1, 20855.2).

The alignment of government research priorities with those of growers and manufacturers was set through the Canadian Tobacco Research Foundation, on which all of the stakeholders had an advisory role. Nonetheless, Mr. Marks agreeably said "no" to Ms. Dyer's inquiries about whether the companies directed the research, or contracted government employees tpo do the work.

"It was a good relationship," said Mr. Marks in one of his longer replies. "They didn’t tell us how and we didn’t ask them what research needed to be done. We took their thoughts and their suggestions into consideration, but it was us at the research station level that made decisions as to what research would be done."

The end of an era

By the end of the 1990s, however, the bloom was off the rose, or at least off the nicotine plant. The Delhi Research Station was transferred to the Canadian Tobacco Research Foundation and Agriculture Canada withdrew from the industry association, CORESTA. (Exhibit 20889). Soon, all government investment in tobacco cultivation was ended. (Exhibit 20789)

Mr. Marks explained the change: "It was a conflict of interest from the government's overall point of view, since Health and Welfare was promoting anti-smoking.... For Agriculture Canada to continue its support was no longer considered to be a good approach. Leaving CORESTA was the first move to remove ourselves from tobacco activities."

A line in "The Sands"

Shortly after lunch time, Ms. Dyer asked her last questions of Mr. Marks. It was a very different question than has been asked of any other witness.

She removed her glasses and leaned forward with her elbows on the plexiglass lectern which is favoured by her team. She told Mr. Marks that "one of the questions that is before the judge ... is did the respondents "deliberately not use parts of the plant that have such low rates of nicotine that they would have put an end to the dependence of a large percentage of smokers'.” 

She asked him to comment on the issue. (The plaintiffs, despite some derisive comments yesterday about the leadingness of Ms. Dyer's questions, made not a single objection over the past two days -- not even to this question!)

Mr. Marks did not give a particularly direct reply. 

He said that the lower leaves of the plant - "the sands" - had a very low level of nicotine. "They would be used as a filler tobacco to get a the nicotine levels that they wanted for light cigarettes or regular cigarettes. Quite often growers would not bother harvesting because they were so low in value they were not worth it." 

Ms. Dyer asked him to confirm that these lower leaves were not sent to the auction house, and that it was the farmers' marketing board which controlled the sale of tobacco crops. 

A few housekeeping issues later, and Ms. Dyer said she had finished with the witness. A whole day earlier than first predicted.

The new boy

Andrew Cleland

There have been many new faces in front of the bar that separates lawyers from the rest of us. Usually, they belong to the large teams of defence lawyers.

This week it was the plaintiffs' team which included a new team member. Yesterday, Mr. Andrew Cleland was introduced to Justice Riordan as a "first round draft pick" of the plaintiffs firm, Trudel-Johnston. Today it was his job to begin the cross examination of Mr. Marks.

Mr. Cleland centred his few short questions around a television interview given by Mr. Marks in March 1997. (It was a very sensitive month in tobacco policy - the federal government's new tobacco law was hanging in limbo in the Senate).

My good friends at the Non-Smokers' Rights Association had uncovered Agriculture Canada's work to develop higher nicotine tobacco varieties and Mr. Marks was providing the government's response to the disclosure.

Fifteen years later, Mr. Cleland wanted to know whether the statements made by Mr. Marks on that occasion were correct. Was it true, as he said, that "there's not necessarily a straight line connection between nicotine level in the leaf which the farmer sells and in the nicotine level in the cigarettes. It depends on how the manufacturers blend the different leaf types in order to come up with a product they want to sell on the marketplace."

"Yes," said Mr. Marks.

And was it true, as he said, that what happens to the tobacco is up to the manufacturer and that the department was "not involved in that aspect at all." 

Mr. Marks continued his agreeable testimony. "Yes" he said again.

Mr. Bruce Johnston had his own short round of questions that he wanted a "yes" answer to.

"Was clear to you that tobacco growing was all about nicotine?" "Yes."

"That people smoke for nicotine?" "Yes."

"Was it clear to everyone you worked with?" "Yes."

"Including the manufacturers?" "Yes."

And as for those low-nicotine "sands" leaves  - would there be anything that prevented the industry from making cigarettes from those leaves? 

"If it wanted to, it could use any part of the tobacco plant."

The man who succeeded Mr. Marks as director of the Delhi Research Station, Mr. Wade Johnson, will testify tomorrow.  

Day 187: "Swamped with details"

You should thank your blessings that you chose to stay away from the Montreal Tobacco trials today. It would be a very rare individual who would find being in the court a good use of time.

The witness today was the 75 year old Charles Francis Marks (aka Frank Marks), the former director of Agriculture Canada's tobacco research centre at Delhi, Ontario. But it was not the fault of Mr. Marks that the day was excruciating.

To the contrary. Rather than dragging things out, Mr. Marks did what he could to move things along. He kept his answers to a minimum, usually giving no more than a simple "yes" to the questions put to him by Imperial Tobacco's counsel, Valerie Dyer. On rare occasion, he rejected her suggestions. Almost never did he give an answer that took more than 2 sentences.

The reason for the pained expression on the plaintiffs' and judges' face today was not the witness. It was the water-drop torture of Imperial Tobacco's strategy in this new phase as the focus moves to the federal government.

The federal government again on the stand

C. Frank Marks
1983

Mr. Marks is the first of the Agriculture Canada witnesses who will be appearing over the following month. His role, it would appear today, is to lay the foundation for their testimony, and also for the silent testimony of other public servants who, by virtue of death or disability, will not testify in person.

It's a foundation that was laid out years ago by Imperial Tobacco and the other companies in the "actions in warranty" they filed against the federal government. These claims contained a detailed chronology of government actions written to suggest that the federal government was the agency in the drivers' seat in the management of tobacco sales and therefore should be the one on the hook for any damages awarded in this case. 

This claim was thrown out by the Quebec Court of appeal just over a year ago (as similar claims had been in other provinces), but that hasn't seemed to diminish the company's fondness for the argument - nor from presenting it as their second line of defence (behind "everyone knew"). The court ruling has, however, has seemingly convinced the federal government to stay away from the case. There was not even a representative of the federal government in court today to observe the proceedings!

In addition to his exposure to the federal role in the actions in warranty issue, Justice Riordan has already been exposed to lengthy testimony about federal actions on tobacco. Notably, Robert John Perrins, an Acadia University historian hired as an expert witness by the companies provided an exhaustive 750 page review that contained no fewer than 1,600 documentary references. (Exhibits 40346, 40347 and 40348). 

It would appear that even these exhaustive reports were not enough. Today Ms. Dyer began an even more microscopic look at the federal "less hazardous cigarette program" that started in the early 1970s and was effectively jettisoned by the end of the decade.

Your tax dollars at work

Today was particularly hard to keep up with the flow of documents. The plaintiff's database is temporarily not working, and the screens which are placed overhead the public galleries went blank.
Nonetheless, there were a few documents that are available that catch the core of the events that were discussed today.

Exhibit 40346.246 describes, among other things, the initiation of a "smoking and health" research collaboration with Health Canada, the establishment of facilities to conduct it, and support from the tobacco industry in the manufacture of experimental products.

Exhibit 20766  provides a report on the efforts of Agriculture Canada's attempts to "help growers produce the best quality flue-cured tobacco at the lowest possible cost" including to "to reduce the biological activity of flue-cured tobacco."

Exhibits 20803.1 and 30001, which record the efforts of Agriculture Canada and Health Canada to establish a consensus on how to achieve the goal of reducing the harmfulness of cigarettes.

Say this for the program - it was ambitious! With only 3 scientific staff, the project set out in 1976 with a two-year goal "to develop safer tobacco products and improve current management practices by isolating, identifying and assessing the variability of chemical and physical leaf characteristics which may be associated with tobacco smoke toxicity and/or carcinogenicity”  (Exhibit 40347.6)

Mr. Marks did not elaborate on these events so much as agree with Ms. Dyer's characterization of them. He said that the person with real knowledge on the details of the program was Dr. Zilkey (scheduled to testify next week), and confirmed that Agriculture Canada worked independently of Health Canada and of the tobacco companies.

He agreed that the department and the researchers working on the problem believed that it was possible to find a safer cigarette. Ms. Dyer did not ask him whether this belief was informed by the industry sharing any of its own research with his colleagues.

Nor did she show him another exhibit from the trial - one in which an industry scientist was laughing at the department's "illusions of grandeur". (Exhibit 1564R)

Dotting the "i's" and crossing the "t's" 

It would not be fair to say that the court did not learn a lot from the dozens of documents shown to Mr. Marks. Some of it seemed quite pertinent to what the government was trying to do and why. But many questions seemed aimed at establishing small details with little apparent importance.

We learned where we could find pictures of the people who worked at the Delhi Research Station. We learned the name of Mr. Marks' secretary. We learned that the London Free Press is a newspaper, and that it is published in London.

During the break, a friendly bet was taken on when Justice Riordan would clamp down on this line of questioning. Better heads than mine correctly predicted that her newness in the court would grant Ms. Dyer a reprieve until the afternoon. (This was Ms. Dyer's second appearance at the trial).

The rebuke, when it finally came, was quite subtle. Justice Riordan pointed out that the level of detail "would not normally be helpful" and that "the colour of the tie that the chairman wore" seemed to be the type of question that she was heading into. Later, he commented that he was "swamped with details." 

Imperial Tobacco Counsel
Valerie Dyer

Ms. Dyer is remarkably unflappable and authoritative in an old-fashioned way. (I would not be surprised to learn that she previously captained a field hockey team). As she had on the previous time she was before Justice Riordan, she seemed to be able to ride past his hints as though confident in the knowledge that he would come to see things her way.

Nonetheless, she admitted she might have been too assiduous in "dotting the 'i's".  After some clarification on the status of the documents that had been agreed to as "2870 exhibits," she promised she would review her approach before tomorrow.

Just in case she decides to stay the course, I might pack my knitting.

C. Frank Marks is scheduled to testify through Wednesday. On Thursday, another former Agriculture Canada employee, Wade Johnson, will appear.