There are moments in the long-running Montreal tobacco trial when it is a little hard to tell the players - even with a score sheet. Today's testimony by Mr. Robin Robb was one of those times.
Nor did they take any responsibility for whether or not young people (i.e. those under 16 or 18) were able to buy their cigarettes. "Once the cigarette went to the store, the retailer was responsible for making sure it not sold to someone under 16. We had no control over that."
No Tardis was in sight, but it felt like we had been taken back a year to the time when other JTI employees were under oath and helping the plaintiffs build their case.
The qualities that had made Mr. Robb a likely choice for the companies - he is polite, intelligent, seemingly sincere, a knowledgeable marketer and heartfelt in his defence of the tobacco industry -- also made him an effective witness for the plaintiffs when it came their turn to cross-examine him.
One of the sharper knives in JTI's drawer - but one with a blade that could cut both ways.
A toothless tiger
In his questions to Mr. Robb, JTI-Macdonald's lawyer, Mr. Guy Pratte, had focused on the way in which the industry's voluntary marketing code had been applied. Various versions of the Code were in effect from the early 1970s until federal laws controlling marketing in place. (The Tobacco Products Control Act was in force from 1989 to 1995, and the Tobacco Act has been in force, albeit amended on two occasions, since 1997).
This code was again in the spotlight today, as André Lespérance and Bruce Johnston asked Mr. Robb to go deeper in his explanations of how this self-regulatory system was applied.
Before long, they had put Mr. Robb in the position of confirming many of the criticisms that the code had provoked within the public health community. Some of these concerns are captured in documents which are not yet part of this trial record - including the celebrated "Catalogue of Deception", compiled by the Non-Smokers' Rights Association and a report commissioned by Health Canada.
The rules were changed when inconvenient -- and sometimes retroactively.
 |
| The CTMC rules were changed - and backdated - to allow posters like these in stores near schools |
When under pressure in 1984 to apply the code's provisions against placing "posters" in stores near schools, the CTMC opted to change the rules rather than to change their members' marketing practices. Mr. Robb was unaware, until shown by Mr. Lespérance, that the change had been backdated. (Exhibits 40005M, 40005M.1, 40005M.2, 40005M.3, 40005M.4)
Did they cheat the system, or was it the system that cheated?
In the first days of testimony, Mr. Robb had left no doubt about his frustration at the cap on his advertising budget imposed by the CTMC Code. (Rule 2 reads: "The industry will limit total cigarette and cigarette tobacco advertising, promotion and sponsorship expenditures for any year to 1971 levels." )
In this court, he had not volunteered that this restriction was systematically flouted by the companies. But when presenting marketing options to his international managers in 1982, he had spoken openly about the value of using sponsorship advertising or retail displays because such expenditures did not count. (Exhibit 1641).
 |
| In 1982, Mr. Robb planned a way to overcome a cap on advertising expenditures |
Even after persistent questions by Mr. Johnston, he would not admit that this practice was inconsistent with the wording of the Code. Instead, he hid behind the fact that it had been approved by the auditors who "put their reputation on the line" in their statements that "advertising, promotion and sponsorship expenditures" conformed with the CTMC guidelines. (Exhibit 40375) (No, the accounting firm was not Arthur Andersen!)
In defending the practice, he seemed to confirm the view that the industry had the right to apply the Code as it saw fit. "The convention that existed was that these were not included in expenditures.... These were the rules and I accepted the rules as I found them."
Mr. Johnston invited him to agree to the simple mathematical conclusion that, on the basis of his 1983 projections, his budget for promotions was $28 million (worth $56 million in today's dollars). This would have been almost twice as much as the $15.5 million the firm would have been entitled to spend if the CTMC spending cap had meant what it said. "We can throw numbers around," said Mr. Robb "But I don’t think it is constructive."
He suggested that some number throwing might have taken place when he was presenting the budget to Headquarters. "We were in Winston Salem presenting to the board for RJR International. The Canadian company had a lot of problems. We were there trying to show that we had our hands around the business and were going to make things change and do big things. There was a bit of bravado in how we presented ourselves and our plans ... We would try to make our number as big as possible."
The missing link: from non-smoker to new smoker
Mr. Robb testified repeatedly that the prohibition against marketing to young people was one the company took extremely seriously -- it was "hard wired" into the organization.
Young people only became "relevant" for marketing purposes after they had reached the age of 18 and after they had become smokers. So what was meant, Bruce Johnston wanted to know, by the terms "new smokers" and "first time smokers" in their marketing plans. (Exhibit 1272). It was not the first nor the last time in the day that Mr. Robb testified that the words in a document did not mean what they appeared to say.
 |
| Exhibit 1272 |
He said that the company's plans to use counter top displays to "induce trial" among "young adult starter smokers" did not mean that they wanted people who were not smokers to try their cigarettes. (Exhibit 1640).
Nor did they take any responsibility for whether or not young people (i.e. those under 16 or 18) were able to buy their cigarettes. "Once the cigarette went to the store, the retailer was responsible for making sure it not sold to someone under 16. We had no control over that."
Sadly I missed Mr. Robb's answer to the question "How do you influence the second cigarette, but not the first?"
Concerns about anti-smoking ads on the CBC
The last document shown by Mr. Johnston was a worried note written to Mr. Robb's department by their advertising agency following the unexpected broadcast of an anti-smoking ad during the Export A Windsurfer World Championships.
Concerns about anti-smoking ads on the CBC
The last document shown by Mr. Johnston was a worried note written to Mr. Robb's department by their advertising agency following the unexpected broadcast of an anti-smoking ad during the Export A Windsurfer World Championships.
Mr. Robb said yesterday that teenagers would likely not be interested in windsurfing, but Health Canada apparently thought otherwise . So did the ad agency which noted that the "Break the Habit" ad which was "directed at teenagers in an attempt to deter potential starters" had been placed on CBC Sportsweekend. "The reason is obviously that sports programming attracts a large audience base of young males." (Exhibit 1642).
"That's kind of obvious to state," Mr. Robb replied when Mr. Johnston asked whether the company would have preferred that the anti-smoking ad had not been aired during the broadcast of their sponsored event.
The re-direct
As the day wore on, the courtroom atmosphere began to get a little frosty - or frostier than it has been for the past couple of weeks. There were more than a few moments when the entente between the lawyers for JTI-Macdonald and the plaintiffs seemed to become a little less cordiale.
This tension added to the feeling of suspense when Mr. Pratte began a final hour of questions for his witness, and perhaps contributed to the sense of anticlimax at the content of the exchange.
Yes, the average age of contestants in the sporting events was over 22. No, the events had not succeeded in associating the Export Brand with skiing or windsurfing in smokers' minds. (Exhibit 40392) No, the federal government had never offered studies to show that sponsorship promotions induced young people to start smoking. No, their own focus groups had not found that smokers perceived these campaigns as attractive to young people. Yes, those who might have seen the Vantage Arts Academy advertisement were "wealthier and more educated" and even - gasp - business people.
Yes, the average age of contestants in the sporting events was over 22. No, the events had not succeeded in associating the Export Brand with skiing or windsurfing in smokers' minds. (Exhibit 40392) No, the federal government had never offered studies to show that sponsorship promotions induced young people to start smoking. No, their own focus groups had not found that smokers perceived these campaigns as attractive to young people. Yes, those who might have seen the Vantage Arts Academy advertisement were "wealthier and more educated" and even - gasp - business people.
The end of the afternoon was in sight before Mr. Robb was thanked by Justice Riordan and invited to step down. Soon the next witness - Mr. Lance Newman - was standing before the bench.
Mr. Newman's testimony about marketing at RJR-Macdonald in the following decades will be told to the court (and in this blog) tomorrow.
