On Thursday, Ocober 4th, the class action trial against Canadian companies moved towards Canada's Thanksgiving holiday break with the fourth and last day of testimony by Peter J. Hoult.
Mr. Hoult is a former heavy-weight in the former RJ-Reynolds empire. He is the one-time marketing boss for RJR-Macdonald (1979-1983), president of RJR-Macdonald (1987-88) and executive vice president for RJ-Reynolds USA operations (1988-89).
As he had for the first three days, plaintiff lawyer Mr. Philippe Trudel lead the questioning in a soft-spoken and unruffled manner. An underlying theme to his questions to this witness has been the extent to which major decisions at the company were directed by the company's owners (RJR Tobacco International and the holding company for all the Reynolds companies, RJ Reynolds Industries).
Mr. Hoult's casual acceptance of the role that international tobacco companies played in trying to influence political decisions and social attitudes in Canada seemed a stark contrast to the recent furor about foreign interests influencing the Northern Gateway project!
In the war against Canadian tobacco legislation, who exactly was the Field Marshall?
Mr. Hoult was in the president's office at RJR-Macdonald during the parliamentary review of the 1980s legislative initiatives to curb tobacco promotion, C-204 and C-51. A week after Health Minister Jake Epp introduced Bill C-51 in April 1987, the CTMC was working on plans for the "galvanizing of opposition" (Exhibit 718), plans which developed further over the spring and summer (Exhibit 734, 433D). RJR-Macdonald was very concerned about the impact these laws would have (Exhibit 722).
From the outset, Peter Hoult reported in to his superiors Sam Witt and Richard Marcotullio, and their communications specialist James Fyock, from whom he received "human resources", instructions, advice and technical assistance. The U.S.-based parent company wanted the Canadian campaign to be "more aggressive". (Exhibit 719, 728, 735).
The description offered by Mr. Hoult in his testimony differed from the impression left by the documents. When Philippe Trudel asked "would it be fair to say the campaign against bills C-204 and C-51 was coordinated with RJR Industries," Mr. Hoult replied:
"I think it is better expressed that there was expertise in the US and in RJRTI and in RJRTC that had developed over the years in dealing with the US congress and therefore we were pleased and grateful to make use of the experience that they had had in dealing with a similar situation in Canada. We were really the coordinators and they were providing assistance on an as required basis."
(For more information on the parliamentary review of those laws, see A History of Tobacco Control in Canada, pp. 46-54).
Parliamentary privilege
An important snippet of Canadian tobacco history was finally introduced into evidence today. From the beginning of the trial, the question has hung in the air regarding whether the plaintiffs would be able to put on the record comments made by the industry to parliamentary committees. Today Justice Riordan allowed Peter Hoult's Testimony to the legislative committee reviewing C-204 and C-51 to be admitted as evidence (Exhibit 729).
It was a struggle to get there. On June 11, the industry had argued that parliamentary privilege should disqualify many categories of documents from admission to the trial record. Justice Riordan had signalled that he would be taking "a document by document process" and today was the first day that this approach was tested.
Lawyers from each of the companies jumped to their feet as soon as Philippe Trudel moved to introduce the Hansard record of Peter Hoult's comments to the committee. Justice Riordan gave little air time to any objections. "For every complaint I get on parliamentary privilege, I will allow the document or the testimony to be made and I will decide on whether parliamentary privilege applies on the use," he said.
JTI-Macdonald lawyer Doug Mitchell wanted the plaintiffs to be required to identify the purpose of the document or testimony, and his colleague Francois Grondin protested that allowing the documents in this way was "making a mockery of parliamentary privilege." Simon Potter clarified that "no one on this [the defendants] side of the room has any doubt" that the documents would be used to "impugne the defendants."
Mr. Hoult is a former heavy-weight in the former RJ-Reynolds empire. He is the one-time marketing boss for RJR-Macdonald (1979-1983), president of RJR-Macdonald (1987-88) and executive vice president for RJ-Reynolds USA operations (1988-89).
As he had for the first three days, plaintiff lawyer Mr. Philippe Trudel lead the questioning in a soft-spoken and unruffled manner. An underlying theme to his questions to this witness has been the extent to which major decisions at the company were directed by the company's owners (RJR Tobacco International and the holding company for all the Reynolds companies, RJ Reynolds Industries).
Mr. Hoult's casual acceptance of the role that international tobacco companies played in trying to influence political decisions and social attitudes in Canada seemed a stark contrast to the recent furor about foreign interests influencing the Northern Gateway project!
In the war against Canadian tobacco legislation, who exactly was the Field Marshall?
Mr. Hoult was in the president's office at RJR-Macdonald during the parliamentary review of the 1980s legislative initiatives to curb tobacco promotion, C-204 and C-51. A week after Health Minister Jake Epp introduced Bill C-51 in April 1987, the CTMC was working on plans for the "galvanizing of opposition" (Exhibit 718), plans which developed further over the spring and summer (Exhibit 734, 433D). RJR-Macdonald was very concerned about the impact these laws would have (Exhibit 722).
From the outset, Peter Hoult reported in to his superiors Sam Witt and Richard Marcotullio, and their communications specialist James Fyock, from whom he received "human resources", instructions, advice and technical assistance. The U.S.-based parent company wanted the Canadian campaign to be "more aggressive". (Exhibit 719, 728, 735).
The description offered by Mr. Hoult in his testimony differed from the impression left by the documents. When Philippe Trudel asked "would it be fair to say the campaign against bills C-204 and C-51 was coordinated with RJR Industries," Mr. Hoult replied:
"I think it is better expressed that there was expertise in the US and in RJRTI and in RJRTC that had developed over the years in dealing with the US congress and therefore we were pleased and grateful to make use of the experience that they had had in dealing with a similar situation in Canada. We were really the coordinators and they were providing assistance on an as required basis."
(For more information on the parliamentary review of those laws, see A History of Tobacco Control in Canada, pp. 46-54).
Parliamentary privilege
An important snippet of Canadian tobacco history was finally introduced into evidence today. From the beginning of the trial, the question has hung in the air regarding whether the plaintiffs would be able to put on the record comments made by the industry to parliamentary committees. Today Justice Riordan allowed Peter Hoult's Testimony to the legislative committee reviewing C-204 and C-51 to be admitted as evidence (Exhibit 729).
It was a struggle to get there. On June 11, the industry had argued that parliamentary privilege should disqualify many categories of documents from admission to the trial record. Justice Riordan had signalled that he would be taking "a document by document process" and today was the first day that this approach was tested.
Lawyers from each of the companies jumped to their feet as soon as Philippe Trudel moved to introduce the Hansard record of Peter Hoult's comments to the committee. Justice Riordan gave little air time to any objections. "For every complaint I get on parliamentary privilege, I will allow the document or the testimony to be made and I will decide on whether parliamentary privilege applies on the use," he said.
JTI-Macdonald lawyer Doug Mitchell wanted the plaintiffs to be required to identify the purpose of the document or testimony, and his colleague Francois Grondin protested that allowing the documents in this way was "making a mockery of parliamentary privilege." Simon Potter clarified that "no one on this [the defendants] side of the room has any doubt" that the documents would be used to "impugne the defendants."
Justice Riordan was in no mood to hear any more. "The answer is no. I have given you my position. I will allow the proof to go in, but I will be very cautious as to how it is used. I will be attentive as to whether there has been repetition outside of parliament. That’s it. That’s all. -- Next question!"
A sampling from Peter Hoult's testimony in 1988:
Q. Are there any smokers who die from tobacco-related diseases'. Is the number above zero?
Peter Hoult: "On the basis of the evidence that has been put forward today and on previous occasions. the studies that have been referred to as statistical are just that. All the research that has been carried out clinically has not in one single instance demonstrated that smoke and tobacco causes any disease. That is a clinical result."
Cross border advertising strategies
Other ways in which RJR-Macdonald received a helping hand from its U.S. sister company were identified by Philippe Trudel. The company planned on "overflow advertising" from American magazines to promote the Camel Brand (Exhibit 720) . An arrangement was made for the costs of Winston promotions to be picked up by the parent company, giving the Canadian company more wiggle room in its advertising budget which was constrained by a cost-ceiling under the industries' voluntary code. (Exhibit 721).
Mr. Hoult had once described the Barclay filter as a technique of "cheating" smoking machines. Philippe Trudel now asked him whether this was a "kind of Barclay strategy," to cheat the CTMC budget ceilings. "Absolutely not!" said Mr. Hoult, in an answer that suggested that he saw the marketing of the Winston brand as an exogenous event to RJR-Macdonald, even though it was his company that distributed the brand.
Hoult on cigarette taxes - they reduce consumption
In 1987, Peter Hoult helped prepare a CTMC position on taxation, aimed at "limiting tobacco tax increases" and keeping "taxation and smoking and health issues split". (Exhibit 724 and 724A). But in answering questions 25 years later, Mr. Hoult suggested that cigarette taxes were linked with health outcomes. "Taxation was absolutely clear cut," he explained. "It increased the price of cigarettes. Increasing the price of cigarettes impacted the total volume of the industry." This is different than the position taken by JTI-Macdonald's current president, Michel Poirier, on September 19th.
The final questions
Shortly after lunch, Mr. Trudel asked his last questions, and the opportunity for other parties' to question the witness became available. (Confusingly, this is not technically a cross-examination, although it would pass for it on television).
The federal government lawyer, Maurice Regnier, was first to the post. The federal government is trying to get out of this case (a Court of Appeal decision is pending) and Mr. Regnier has consistently kept a low profile in the court. He typically intervenes only on questions where there has been a focus on the role of the federal government, of which there were many instances in Mr. Hoult's testimony.
Mr. Regnier countered the suggestion that the government approved the industry's agreement over how consistent the levels published on the side of the pack had to be with machine tests, asking questions that left the impression that this agreement was never even known to government.
On the issue of government approval of the Hunter List of additives, Mr. Regnier pushed Mr. Hoult to identify the source of his knowledge or impression about Health Canada's position. His answer, as I heard it, is one for the keeper list. "The Hunter List and the German List were accepted by many governments and therefore Canada being part of the many governments would accept the list ... I have no indication they rejected the list, and in that we operated within it, there was an assumption they agreed."
To counter this impression, Mr. Regnier introduced as evidence a Health Canada record of a meeting with the tobacco companies during which the use of additives had been discussed (Exhibit 50018R - not yet available). "Dr. Bray expressed concern about the toxicity of additives and asked if there was any information available from parent or associated companies on toxicity of additives." and "The manufacturers asked if the Hunter list or any other list could be used as a Canadian guideline for approved or non-approved additives. Dr. Bray replied that this was not the case." (More documents related to additives were put on the trial record - Exhibits 717, 717A).
Mr. Regnier also challenged Mr. Hoult's assertion that the government would not have allowed the printing of additional health information on or leaflets inserted in cigarette packages. The witness was shown a memo sent to the CTMC well before Mr. Hoult's arrival in Canada that urged the companies to use package inserts or other means to "inform consumers about the least hazardous use of the product." (Exhibit 50014).
We didn't advertise cigarettes to kids - we advertised cigars to kids.
 |
| Junior Hockey - 1983 |
On behalf of JTI-Macdonald, Doug Mitchell introduced documents which supported the position of Mr. Hoult that the Creative Research Group had been asked to limit its research on young people to those over 18 and that the researchers had confirmed receiving this request (Exhibit 40018, 40019, not yet available).
And as for the printing of advertisements in the magazine Junior Hockey in 1982 -- well, Doug Mitchell pointed out those were for little cigars, and reminded the court that the Judge had previously ruled that the evidence was restricted to cigarettes. (The cigar brand was O'sherry - a brand no longer sold).
Justice Riordan: the reluctant hall monitor
On Wednesday, Mr. Hoult had introduced a the term "swingeing" to describe punishing and restrictive regulations. But it was lawyers' prolonged "whinging" on Thursday that Justice Riordan may have found punishing to listen to.
On September 17th, he had ruled that the plaintiffs had the right to subpoena CTMC documents that are now held in British Columbia and Ontario, and his ruling had pushed for quick actions on the part of the tobacco companies. The plaintiffs had wanted to take the opportunity of next week's break to go to Vancouver and review the documents, and complained at industry delays in setting this up. Suzanne Coté's gave as a reason for needing more time the fact that their client was "out of the country." Working for a multinational may have its advantages.
Justice Riordan said he had "a lot of trouble understanding the companies' positions" but implied concerns about preventing the companies from ragging the puck while the decision was being appealed. He pushed for a report next Wednesday, when the trial will reconvene for a half day.
Very soon the trial will turn to witnesses from Philip Morris International's Canadian operation, Rothmans, Benson & Hedges (RBH), which is represented in this trial by Mr. Simon Potter. His concerns about the rescheduling of the current president of the company, Mr. Barnett were expressed at length - why use one adjective when two or three more are available for use? Again, Justice Riordan declined the invitation to meddle in issues that he thought the lawyers should work out independently.
Let us give thanks for a break week
This past three week leg of the trial has been the least fractious to date. From the body language and occasional laughter in the court, this month has been less wearing on the lawyers than previous ones.
Now it seems Justice Riordan who is more worn down from the work. He has become quicker and blunter in his admonishments to the lawyers ("this type of question is really tedious" - "that's it, that's all" ). The plaintiffs made visible efforts today to adjust their plans to his more forcefully expressed concerns.
Next week the court meetings on Wednesday morning (October 10), when the first witness from Rothmans, Benson & Hedges will testify. His name is Ron Bulmer.
