Annexes to Richard Pollay's Expert Opinion
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Thursday, 4 June 2015
Lifestyle advertising and misleading the "credulous and inexperienced consumer"
Is lifestyle advertising for harmful products inherently false and misleading if it fails to mention product risks?
In his ruling this week, Justice Riordan went some way to saying "yes". Or it certainly looks this way to this "credulous and inexperienced consumer" of legal rulings.
Neutral
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The judge assessed whether the advertisements that had been widely displayed in Quebec after 1980 (when the Consumer Protection Act was adopted) complied with that law's provisions that: "219. No merchant, manufacturer or advertiser may, by any means whatever, make false or misleading representations to a consumer."
He reviewed some specific ads, including those displayed here, and decided that the law did not require smokers to get the impression that smoking was healthy in order for the ads to be misleading. "The test would be whether the general impression is true to reality. It would be enough if they suggested that it was not harmful to health."
Not all ads were misleading in this way, he found. He cited as a non-offending "neutral' advertisement one which had been used to promote Macdonald Select in 1982.
Others, however, he found "contain a theme and sub-message of elegance, adventure, independence, romance or sport. As well, they use attractive, healthy-looking models and healthy-looking environments." These, he decided, were misleading within the context of the Supreme Court's concern for the "credulous and inexperienced consumer."
[536] From the viewpoint of a 'credulous and inexperienced' consumer, ads such as these would give the general impression that, at the very least, smoking is not harmful to health.
He ruled that the Consumer Protection Act had been violated and that the companies must pay both compensatory and punitive damages.
Interestingly, this was not exactly the argument that the plaintiffs had made to the judge. The view of their expert witness, Richard Pollay, that widespread advertisements created a "friendly familiarity" was not one that this judge bought into.
But having rejected the advice of the plaintiffs' marketing expert, the judge cast his own eye to the ads which had been shown during the trial. "It is by viewing them – through the eyes of a credulous and inexperienced consumer – that the Court can assess whether there is a contravention of this provision."
The plaintiffs may not have convinced the judge through their expert, but they did through their evidence. And it was the defendants' evidence that the judge used to make the link between these ads and the need for compensation.
The Supreme Court has set four criteria for a misleading ad to result in a financial award. Two of those require that the advertisement resulted in people buying the product and also that it was capable of influencing that decision.
Throughout the trial, the defendants had argued that the purpose of advertising was to win market share away from their competitors -- i.e. to get people to buy their cigarettes. Many marketers from the companies had spoken about the prolonged efforts and enormous sums that were spent on marketing to generate sales. So it was by their own admission that Justice Riordan ruled that the companies' misleading ads were able to and were successful at selling cigarettes.
This section of Justice Riordan's ruling is pasted below.
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II.G.2.c THE ALLEGED CONTRAVENTION UNDER SECTION 219 CPA
[518] Section 219 reads as follows: 219. No merchant, manufacturer or advertiser may, by any means whatever, make false or misleading representations to a consumer.
519] Section 218 is also relevant for these purposes. It reads: 218. To determine whether or not a representation constitutes a prohibited practice, the general impression it gives, and, as the case may be, the literal meaning of the terms used therein must be taken into account.
[520] With respect to the general impression mentioned there, it is "the impression of a commercial representation on a credulous and inexperienced consumer".267
[521] The Plaintiffs argue at paragraph 154 of their Notes that "Throughout the class period, (the Companies) contrived and executed an elaborate strategy that used affirmations, behaviour, and omissions to deny the true nature of their toxic, useless product or mislead consumers about these important facts". In paragraph 155, they add: 155. Throughout the class period, the Defendants not only failed to inform consumers but also used every form of public interaction available to them to deny the harms and extent of risk associated with cigarette consumption. In the rare circumstances where they acknowledged that cigarettes could be dangerous or harmful, the Defendants trivialized those harms and the intensity of the risk. They further falsely represented cigarettes as providing smokers with benefits when they knew that were selling a pharmacological trap.
[522] For reasons that are not clear, the Plaintiffs do not focus on marketing activities under this section of the CPA, reserving that for their arguments under section 220(a). In our view, that discussion should occur in the present section, and we shall proceed accordingly.
[523] The extent of the Companies' representations to consumers during the part of the Class Period when this provision was in force was to advertise their products between 1980 and 1988, as well as between 1995 and 1998, and to print Warnings on the packages. This was the period of their Policy of Silence, so they were making no direct comments about smoking and health.
[524] In section II.E.6 of the present judgment, we found no fault on the Companies' part with respect to conveying false information about the characteristics of their products. That is relevant to this question but, in light of sections 216 and 218, it is not conclusive. A different test is called for under the CPA. 267 Op. cit., Time, Note 20, at paragraph 70. 500-06-000076-980 PAGE: 117 500-06-000070-983
[525] In similar fashion, our rulings in section II.B.1 that the Companies' faults with respect to the obligation to inform about safety defects ceased as of January 1980 for the Blais File and March 1996 for the Létourneau File is not relevant to the CPA-based claims. Under the CPA, the consumer's knowledge of faulty representations does not exculpate the merchant.
[526] As stated in Turgeon, the CPA is "a statute of public order whose purpose is to restore the contractual [balance] between merchants and their customers".268 Its method is to sanction unacceptable behaviour on the part of merchants, regardless of the effect on the consumer269. Hence, the defence of consumer knowledge open to a manufacturer under article 1473 of the Civil Code is not available.
[527] Even though the Companies' ads did not convey false information, since they conveyed essentially no information, under the CPA the question is whether their representations would have given a false or misleading impression to a credulous and inexperienced consumer. For that, it would not be necessary for them to go so far as to say that smoking was a good thing. The test is whether the general impression is true to reality270. It would be enough if they suggested that it was not harmful to health.
[528] ITL and RBH plead a lack of proof, coupled with a complaint about overly general allegations and lack of interest. JTM argues in its Notes as follows: 215. As will be demonstrated below, there is nothing misleading or inappropriate with lifestyle advertising. The methods used by JTIM for its marketing were legitimate and similar to those used by other companies in other areas. JTIM’s advertisements did not make any implicit or explicit health claims, and there is no evidence whatsoever that any class member was misled by any of JTIM’s advertisements.
[529] JTM cites a 2010 Court of Appeal decision dealing with the purchase of a motor home that supports the position that banal generalities in advertising do not constitute false or misleading representations.271 Although not directly on point, that reasoning is relevant here.
[530] The Companies' argument about overly general allegations is well founded. The Plaintiffs point to few if any specific incidents in support of their argument. Their reference to paragraph 18.12 of Professor Pollay's report does them little good. We have already concluded that it is unconvincing on this question.
[531] The Plaintiffs accuse the Companies of using "labelling and lifestyle advertising to create a 'friendly familiarity' with (the Companies') product in order to falsely convince consumers that cigarette smoking was consistent with a healthy, successful lifestyle" 272, without explaining how they see that process working. In the absence of further explanation, the Court does not see the evidence as supporting this general statement.
[532] All this seemingly leads to a conclusion that the Companies did not violate section 219. The problem is that none of it looks directly at the evidence in the record, i.e., the typical ads used by the Companies since 1980. It is by viewing them – through the eyes of a credulous and inexperienced consumer – that the Court can assess whether there is a contravention of this provision.
[533] It should not be controversial to assert that every single cigarette ad since 1980 for every single brand of the Companies' products attempted to portray those cigarettes in a favourable light. That does not necessarily mean that they all suggested that smoking was not harmful to health.
[534] A good example of a "neutral" ad is Exhibit 40480. It simply shows the packages of the three sub-brands of Macdonald Select cigarettes, with a short message aimed at "those who select their pleasures with care". There are other ads of this sort and none of them constitute violations of section 219 CPA. They, however, are the exception.
[535] As a general rule, the ads contain a theme and sub-message of elegance, adventure, independence, romance or sport. As well, they use attractive, healthy-looking models and healthy-looking environments, as seen in the following exhibits:
• Exhibit 1381.9 – Macdonald Select ad of 1983 showing an elegantly-dressed couple apparently about to kiss;
• Exhibit 1040B – Export A 1997 ad portraying extreme skiing
• Exhibit 1040C – Export A 1997 ad portraying mountain biking
• Exhibit 1381.33 – Belvedere 1988 ad showing young adults on a beach
• Exhibit 152 – two Player's Light 1979 ads273 portraying horseback riding and canoeing in the Rockies
• Exhibit 1532.4 – Belvedere 1984 ad from CROC magazine showing a tanned couple on the beach
• Exhibit 243A – Vantage 1980 ad from The Gazette, text only, explaining how Vantage delivers taste but "cuts down substantially on what you may not want"
• Exhibit 40436 – two Export A 1980 ads showing loggers and truckers
• Exhibit 40479 – two Export A 1982 ads showing a mountain lake and a man on top of a mountain
• Exhibit 573C – Export A 1983 ad portraying a windsurfer
• Exhibit 771A – Player's Light 1987 ad seeming to portray a windsurfer in Junior Hockey Magazine
• Exhibit 771B – Export A 1985 ad in Junior Hockey Magazine portraying alpine skiing and Viscount 1985 vaunting it as the mildest cigarette 273 Although this ad is from 1979, we assume it carried over at least into the next year.
[536] From the viewpoint of a "credulous and inexperienced" consumer, ads such as these would give the general impression that, at the very least, smoking is not harmful to health. In this manner, the Companies failed to fulfil one of the obligations imposed by Title II of the CPA.
[537] As for each and every Member of both Classes seeing the infringing representations, we dealt with this issue in an earlier section. The Companies admit that all Members would have seen newspaper and magazine articles warning of the dangers of smoking. Since the ads appeared, inter alia, in the same media, it is reasonable to conclude that all Members would have seen them, as well.
[538] We come to the third condition: that seeing the representation resulted in the Members' purchasing of cigarettes. In their proof, the Companies consistently emphasized that the purpose of their advertising was to win market share away from their competitors. To that end, they spent millions of dollars annually on marketing tools and advertising. Moreover, the Court saw the result of such marketing efforts, particularly through the success of ITL at the expense of MTI in the 1970s and 80s.
[539] This is sufficient proof to establish the probability that the Companies' ads induced consumers to buy their respective products. The third condition is met.
[540] The same evidence and reasoning shows that the final condition: that the prohibited practice was capable of influencing a consumer's behaviour with respect to the decision to purchase cigarettes, is also met.
[541] As a result, there is a contravention of section 219 CPA here. The Members may claim moral and punitive damages pursuant to section 272 CPA, subject to the other holdings in the present judgment.
Footnotes
268 Op. cit., Turgeon, Note 259, at paragraph 36. 269 Op. cit., Time, Note 20, at paragraph 50.
268 Op. cit., Turgeon, Note 259, at paragraph 36. 269 Op. cit., Time, Note 20, at paragraph 50.
270 In Time, the Supreme Court calls for a two-step analysis for questionable representations: describe the general impression on a credulous and inexperienced consumer and then determine whether that general impression is true to reality: Op. cit., Note 20, at paragraph 78.
271 Martin v. Pierre St-Cyr auto caravans ltée, EYB 2010-1706, at paragraphs 24 and 25.
272 Plaintiffs' Notes at paragraph 157.
Wednesday, 22 October 2014
Day 245: Anodyne advertising. A failed conspiracy.
During this stage of the Montreal tobacco trials, my shortcomings have stood in the way of my fully appreciating the events that I have the pleasant task of witnessing.
Chief among those, of course, is my poor understanding of the legal principles that are so vigorously and contradictorily thrashed out before Justice Riordan. Fin de non recevoir, anyone?
Like a sophomore arts major who has stumbled into a graduate physics lecture, I often sit in blank incomprehension.
Today, however, was a return to the familiar. On his third day of presenting the final arguments of his client, JTI-Macdonald, Mr. Guy Pratte turned to the subjects of cigarette advertising and industry collusion.
Home turf at last. But what a different landscape Mr. Pratte made of it!
Harmless marketing
Over the morning, Mr. Pratte presented Justice Riordan with reasons he should not find that the advertisements placed by JTI-Macdonald offended either the community standards of their time nor Quebec law.
He focused at first on the ads produced during the first decades of the trial period, before 1980.
Until his death at the end of the 1960s, Macdonald Tobacco was a private company owned by the philanthropist-industrialist, Mr. Walter Stewart and his family. He will be remembered as the man who gave most of profits away, and who did not put much store in marketing.
(Despite this approach, the company's bread-and-butter brand, Export A, was the market leader. Shipments to soldiers during the Second World War cemented the brand's popularity, but this mixture of patriotism and marketing happened prior to the years covered by this trial).
After showing a few dull ads from this period, Mr. Pratte then showed the next phase of Export A ads, which were published in the mid 1970s to mid 1980s, after Mr. Stewart had died and the company had been acquired by RJ Reynolds. RJR-Macdonald, as it was then, was struggling to establish its marketing relevance and its ads showed it. Men with dogs. Men with trucks. Log-drivers taking a break. Rumpled, domesticated men. Canada, eh?
Mr. Pratte asked rhetorically how these ads could possibly appeal to youth, or convince a smoker to not quit. "How more anodyne can you be?"
These were a form of lifestyle advertising, he said, but no one raised concerns about lifestyle ads in this period. "There were no complaints from anybody."
Lifestyle ads, he told Justice Riordan, were not banned until near the end of the class period -- 1997! He warned him against ruling that such ads were inappropriate. Doing so would be to "retroactively impose a ban on advertising."
The "smoke smart" ads for low-tar Vantage were similarly portrayed as consistent with federal health policy. Yes, there may have been a few complaints at the time, but these had come to nothing.
"You can't ignore the fact that the ads, when you look at them, do what the government wanted to be done. You can't ignore that the complaints were dismissed," said Mr. Pratte.
No empty vessels
Chief among those, of course, is my poor understanding of the legal principles that are so vigorously and contradictorily thrashed out before Justice Riordan. Fin de non recevoir, anyone?
Like a sophomore arts major who has stumbled into a graduate physics lecture, I often sit in blank incomprehension.
Today, however, was a return to the familiar. On his third day of presenting the final arguments of his client, JTI-Macdonald, Mr. Guy Pratte turned to the subjects of cigarette advertising and industry collusion.
Home turf at last. But what a different landscape Mr. Pratte made of it!
Harmless marketing
Over the morning, Mr. Pratte presented Justice Riordan with reasons he should not find that the advertisements placed by JTI-Macdonald offended either the community standards of their time nor Quebec law.
He focused at first on the ads produced during the first decades of the trial period, before 1980.
Until his death at the end of the 1960s, Macdonald Tobacco was a private company owned by the philanthropist-industrialist, Mr. Walter Stewart and his family. He will be remembered as the man who gave most of profits away, and who did not put much store in marketing.(Despite this approach, the company's bread-and-butter brand, Export A, was the market leader. Shipments to soldiers during the Second World War cemented the brand's popularity, but this mixture of patriotism and marketing happened prior to the years covered by this trial).
After showing a few dull ads from this period, Mr. Pratte then showed the next phase of Export A ads, which were published in the mid 1970s to mid 1980s, after Mr. Stewart had died and the company had been acquired by RJ Reynolds. RJR-Macdonald, as it was then, was struggling to establish its marketing relevance and its ads showed it. Men with dogs. Men with trucks. Log-drivers taking a break. Rumpled, domesticated men. Canada, eh?
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| Anodyne ads |
These were a form of lifestyle advertising, he said, but no one raised concerns about lifestyle ads in this period. "There were no complaints from anybody."
Lifestyle ads, he told Justice Riordan, were not banned until near the end of the class period -- 1997! He warned him against ruling that such ads were inappropriate. Doing so would be to "retroactively impose a ban on advertising."
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| Supporting government policy |
"You can't ignore the fact that the ads, when you look at them, do what the government wanted to be done. You can't ignore that the complaints were dismissed," said Mr. Pratte.
No empty vessels
Moreover, the people who saw these ads were aware of what was being promoted (cigarettes) and were aware of the risks of using buying them. They were not "empty vessels". "If there is one thing we know about these people is that they have this one piece of knowledge, as of 1980."
Because of this, the approach taken by the Supreme Court in protecting consumers from sweep-stake ads for magazines did not apply.
Bystanders, not conspirators.
Justice Riordan gave Mr. Pratte even less comfort this afternoon, forcing him to step back from a few claims he wanted to make.
The first was after Mr. Pratte suggested that that the tobacco industry had established its first political association in response to a request from the Minister of Health in 1963. (Exhibit 20326) "But wasn't there another document?" the Judge interrupted, getting confirmation that this had later been described as an "insurance policy" of the industry. (Exhibit 938). (The judged politely rebuffed two attempts to disconnect the two exhibits).
The judge also challenged Mr. Pratte's characterization of Macdonald Tobacco as "bystanders" to an earlier (1962) meeting to discuss a united position on smoking and health issues. (Exhibits 154, 154a, 154b, etc). He asked the lawyer to acknowledge that "they were a member, they never disassociated themselves" and then, most unusually, instructed him to move on to a new topic.
He solicited Mr. Pratte's views on the role of conspiracy within civil litigation in Quebec. What if the CTMC had acted improperly? Would all the member companies be implicated? It would have to be wrongful behaviour, said Mr Pratte, before admitting that this would be the case.
The rehabilitation of Hans Selye
Part of the allegations against the companies is that they conspired to engage scientists to muddy the waters and maintain a false controversy.
"Unfair", "over-the-top" and "unwarranted" said Mr. Pratte, to suggest that prominent Canadian scientists who had been funded by the industry had done anything improper. He singled out two Canadian Medical Hall of Fame inductees -- Peter Hogg and Hans Selye -- as examples of individuals whose reputations should not have been brought into question.
Having protested against parliamentary records being admitted into evidence, Mr. Pratte surprisingly cited from one of these "privileged" documents to defend Mr. Selye's honour. It was Mr. Selye's testimony before the Isabelle Committee. (Exhibit 1480-PP)
Mr. Pratte said Mr. Selye had told the committee that he did not have a history with the industry. "I should like to start by making it clear that I have no special competence to talk about the dangers of tobacco since I have done no research with tobacco products."
Only recently, he told them, had he been able to"convince the Tobacco Industry to provide funds for research"
"One has to be fair," said Mr. Pratte. Dr. Selye had been "open about the financial contribution and the limit of his testimony."
What an odd poster-child for academic integrity!
As detailed in an article in the American Journal of Public Health, Hans Selye's involvement with tobacco companies and their litigation efforts dated from a decade before the Isabelle Committee. In 1959 He produced two memoranda on "the alleged relationship between cigarette smoking and lung cancer" (You can find the first and second in somewhat garbled form on the Legacy site. His role was hushed up: in 1959, he advised U.S. lawyers that he did not want his name used in association with this work.
None of this interesting material is in evidence in this trial. The record does, however, include an April 30, 1955 newspaper article identifying him as a University of Montreal researcher looking into tobacco and cancer. (Exhibit 1541.08.039.012).
Procès d'intention
Mr. Pratte is a highly articulate lawyer, and my vocabulary has been enriched by the experience of listening to his presentation. This is a man who does not provide an outline, prefering instead to "adumbrate"!
Because of this, the approach taken by the Supreme Court in protecting consumers from sweep-stake ads for magazines did not apply.
In the 1980s, the management and marketing departments at RJR-Macdonald were given a shake-up, and the new teams adopted a more vibrant marketing style.
Mr. Pratte displayed a few of these ads, and explained that the change reflected the business pressures on the company to maintain market share. He said these ads had everything to do with brand preferences and nothing to do with encouraging people to smoke.
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| Intended purely to support brand share |
It was at this point that Justice Riordan put the first of a series of wicked questions that would face Mr. Pratte over the day.
"So what is the point of having rafting then?" Justice Riordan suggested that the marketers knew what they were doing and that a connection to smoking might be inferred by their choice. "If they go to all this effort to take a wonderful picture of a kayaker ...."
He pointed out that by opining about and interpreting ads without further proof of impact, Mr. Pratte was doing exactly what he had criticized the plaintiffs' expert marketer, Richard Pollay, for doing.
Mr. Pratte insisted that the ad served "only to change the image of the brand .. it does nothing except attract attention."
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| Not profiled today! |
(Perhaps this criticism prompted him to stop showing ads -- certainly he did not display any from more recent years, like those for Extreme Sports! Or maybe they weren't anodyne enough.)
He turned to an explanation of the many ways in which the company had acted vigilantly to ensure it was not targeting youth in its marketing. It certainly did not, as the plaintiffs alleged, purge its records of references to young people -- it's just that there weren't very many!
He outlined other ways in which the company had acted responsibly to guard against exposing young people to inappropriate marketing.
* They had pulled ads for Tempo cigarettes very soon after there were complaints (Exhibit 670).
* Their chosen sponsorship was the SKINS golf competition, unlikely to reach youth
* They measured the audience for down-hill skiing, and found that it was mostly adults, thus allaying concerns about reaching youth through broadcast of sponsored ski events. (Exhibit 40388).
* They gave the Minster of Health an opportunity to review an their guitar ad before launching their first legal campaign after the striking down of the federal ad ban. (Exhibit 40406). "There was no response from the minister saying 'please don't run that'."
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| David Dingwall made public his concerns about JTI's ads |
By this point the gap between what I believed to have happened and what Mr. Pratte was asking Justice Riordan to believe was growing quite wide.
How could it be that Mr. Pratte, in making these claims of "no complaints" had seemingly forgotten that many ministers of health had expressed concerns or more:
* Minister Dingwall had objected to the guitar ad. (Exhibit 11541.26.138.121).
* Minister Bégin tried to prevent the company from sponsoring Canada's national ski team. (Exhibit 20063) Even the skiiers complained. (Exhibit 40023)
* Minister Epp had objected to the Tempo ad. (Exhibit 20063)
* Minister Lalonde had asked the companies to stop lifestyle promotions (Exhibit 50001)
* Minister Munro had introduced a bill to ban all ads (including lifestyle ads) in 1971, and Parliament had passed a law banning all ads (including lifestyle ads) in 1988. The ban on lifestyle ads in 1997 was the fourth federal legislative attempt. ]
The second half of the day was given over to Mr. Pratte's answers to the sixth question posed by Justice Riordan in his guidelines for the final arguments: Did the company conspire to maintain a common front in order to impede users of its products from learning the inherent dangers of such use?
Not possible to find conspiracy, said Mr. Pratte. Proof lay in the fact that neither the public nor government had been tricked. "Government was not deceived. They did not accept the position of industry," he said.
"It was a massive failure if it was ever a conspiracy."
Not possible to find conspiracy, said Mr. Pratte. Proof lay in the fact that neither the public nor government had been tricked. "Government was not deceived. They did not accept the position of industry," he said.
"It was a massive failure if it was ever a conspiracy."
Justice Riordan gave Mr. Pratte even less comfort this afternoon, forcing him to step back from a few claims he wanted to make.
The first was after Mr. Pratte suggested that that the tobacco industry had established its first political association in response to a request from the Minister of Health in 1963. (Exhibit 20326) "But wasn't there another document?" the Judge interrupted, getting confirmation that this had later been described as an "insurance policy" of the industry. (Exhibit 938). (The judged politely rebuffed two attempts to disconnect the two exhibits).
The judge also challenged Mr. Pratte's characterization of Macdonald Tobacco as "bystanders" to an earlier (1962) meeting to discuss a united position on smoking and health issues. (Exhibits 154, 154a, 154b, etc). He asked the lawyer to acknowledge that "they were a member, they never disassociated themselves" and then, most unusually, instructed him to move on to a new topic.
He solicited Mr. Pratte's views on the role of conspiracy within civil litigation in Quebec. What if the CTMC had acted improperly? Would all the member companies be implicated? It would have to be wrongful behaviour, said Mr Pratte, before admitting that this would be the case.
The rehabilitation of Hans Selye
Part of the allegations against the companies is that they conspired to engage scientists to muddy the waters and maintain a false controversy.
"Unfair", "over-the-top" and "unwarranted" said Mr. Pratte, to suggest that prominent Canadian scientists who had been funded by the industry had done anything improper. He singled out two Canadian Medical Hall of Fame inductees -- Peter Hogg and Hans Selye -- as examples of individuals whose reputations should not have been brought into question.
Having protested against parliamentary records being admitted into evidence, Mr. Pratte surprisingly cited from one of these "privileged" documents to defend Mr. Selye's honour. It was Mr. Selye's testimony before the Isabelle Committee. (Exhibit 1480-PP)
Only recently, he told them, had he been able to"convince the Tobacco Industry to provide funds for research"
"One has to be fair," said Mr. Pratte. Dr. Selye had been "open about the financial contribution and the limit of his testimony."
As detailed in an article in the American Journal of Public Health, Hans Selye's involvement with tobacco companies and their litigation efforts dated from a decade before the Isabelle Committee. In 1959 He produced two memoranda on "the alleged relationship between cigarette smoking and lung cancer" (You can find the first and second in somewhat garbled form on the Legacy site. His role was hushed up: in 1959, he advised U.S. lawyers that he did not want his name used in association with this work.
None of this interesting material is in evidence in this trial. The record does, however, include an April 30, 1955 newspaper article identifying him as a University of Montreal researcher looking into tobacco and cancer. (Exhibit 1541.08.039.012).
Procès d'intention
Mr. Pratte is a highly articulate lawyer, and my vocabulary has been enriched by the experience of listening to his presentation. This is a man who does not provide an outline, prefering instead to "adumbrate"!
Most useful was my introduction to a French expression that does not seem to have a direct English equivalent. A "procès d'intention" is the condemnation of someone on the basis of their alleged intentions.
Guarding against such a "procès" was a recurrent theme in Mr. Pratte's comments this week. His closing remarks today were another appeal to the judge to make a distinction between the moral qualities of the defendants and their legal status.
"You may have decided that these people are bad people. But that is not enough. You have to link it to the injury. The injury could only be linked [to conspiracy] if people had actually been deceived. ... It was a massive failure if it was ever a conspiracy. My friends are inviting you to see a conspiracy that just doesn't exist."
Tomorrow Mr. Pratte will complete his presentation of JTIM's defence with a discussion of causality and punitive damages.
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.
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.
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."
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.
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 |
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."
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."
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.
Thursday, 17 April 2014
Day 227: The consumer-driven marketing professor
By the end of a day and a half of listening to the testimony of University of Toronto business professor, David Allan Soberman, I felt I deserved a course credit for Marketing 101.
His elaboration of marketing principles was mostly delivered to the reading level of first year university students or TED-talk audiences. All of it seemed intended to present the marketing activities of his client, JTI-Macdonald as the appropriate actions of marketing professionals.
Introducing Mr. Soberman
Before a witness is accepted as an "expert", he is interviewed (by both sides) about his credentials and background. Through the questions put to Mr. Soberman on Wednesday afternoon, we learned much that might explain his view on the world.
To begin with, he spent his formative years at Queens' University in Kingston, where both his parents were professors and where he received his first qualifications (Engineering '81 and MBA '83). I remember well Queens in those years, and Mr. Soberman's contented capitalism is certainly evocative of that time and place.
Secondly, Mr. Soberman's professional experience as a marketer was at companies whose operations are also of public health concern: Nabisco and Molsons. At the first he sold candy to kids (Bonkers and Bubble Yum), and at the second he sold beer to young adults (Coors). He said nothing to suggest that he thought that these products or the way they were marketed might be problematic.
Thirdly, he has an apparently deep belief that marketing makes the world a happier place as it encourages people to put a higher value on the things they use. ("Trying to create higher levels of satisfaction, the theory being that you make society better.")
He illustrated this tenet with a story from his own experience in being asked by his son for a Canada Goose winter jacket. He explained that the makers of this brand are able to sell their goods for several hundred dollars more than other jackets of similar quality. Through the "image they have created, people like it." The difference in value was real, he said, and you could tell "when you look at the smile on my son's face." In his analysis, people benefit when they become willing to pay more for goods.
His fresh-faced enthusiasm for making people want stuff and his boyish voice (he is a very young 54!) made me think more than once of the white-shirted young men who occasionally knock at my door wondering if I have an unmet need for salvation.The plaintiffs made no objection to Mr. Soberman's credentials. If anything, they seemed pleased to have the industry's perspective validated by such a person. (They sat quietly, responding to questions and comments with small smiles and few objections!)
Mr. Soberman's Report
JTI-Macdonald engaged Mr. Soberman to reply to Richard Pollay, the marketing professor engaged by the plaintiffs.
Like other experts engaged by JTI-Macdonald, Mr. Soberman was recruited by the UK-based law firm, Freshfields. Like the other defence experts, his assigned task was apparently not communicated in writing.
He seems to have applied his own market research skills to the development of his work for this trial: he reported several meetings to learn more about his clients needs before eventually honing in the product he would provide to them.
In more than 50 pages of small print, he addresses 3 questions:
(a) did the company try to get minors or non-smokers to start smoking, and, if so, did it work.(b) is the argument of brand-switching credible.
(c) were "light" cigarettes marketed in misleading ways or to prevent smokers from quitting
He covered a lot of ground before providing the expected answers -- "no", "yes", "no" . He read the proceedings, several trial transcripts, Mr. Pollay's report and all the documents referred to in it. JTI-Macdonald also provided him several hundred additional documents.
Taking a swing at Mr. Pollay
In comparison with the verbal assault by JTI-Macdonald counsel, Doug Mitchell, last year, Mr. Soberman's criticisms of Mr. Pollay are diplomatically put. Nonetheless, his clear message is that the plaintiffs expert is no expert in marketing and should not be given much credence.
Mr. Pollay apparently does not cite relevant models of consumer psychology, mis-states how advertisements are received by consumers, does not understand what a mature market is, interprets tobacco ads in the wrong temporal or regulatory context, and basis his conclusions on irrelevant examples from the United States.
"[Mr. Pollay's] report tells a story, but the story that it tells has a number of shortcomings. The definitions or concepts that he argues seem to be contradictory to what I would call generally accepted marketing theory would say about certain things."
The decision to smoke is not formed by advertising
Mr. Soberman does not share the view of the World Health Organization and others that young people are particularly vulnerable to tobacco advertising.
If young people decide to smoke, he says, they do not do so as a result of exposure to tobacco ads. Intead, this is a behaviour that comes through a high level of emotional involvement and after considerable thought. In his report he writes: "The evidence is thus that the process of becoming a regular smoker occurs over many months and is an extended decision, rather than the spontaneous response to a particular piece of marketing."
Consumers don't believe ads
Mr. Soberman expressed no concern about lifestyle advertising for cigarettes. People are skeptical about advertising from a very young age, they take the credibility of the source of the information into consideration, and they have to see a lot of ads before it will have any impact.
He said that Mr. Pollay's concerns about cigarette ads being associated with vitality and health showed that he improperly understood how people interpret advertisements.
"One of the things that struck me as being the most far fetched when I read his report was the assertion that people process this lifestyle advertising literally – which is that they think that if you see an ad with someone engaging in an activity or looking like they are having a good time then by using the activity the same thing will happen to you. These types of comments permeate the report. They are completely inconsistent with my understanding of how people process advertising. people are used to seeing advertising and processing advertising."His report cites examples of other products whose ads showed that literal interpretation was inappropriate. These included Tiger Wood's promotions for Titleist golf balls and former sex-kitten Farah Fawcett's promotion for Mercury Cougar cars.
"People know that if they use a Titleist golf ball, they will not hit the ball as far or as straight as Tiger Woods does in the commercials." "There is no evidence to believe that viewers actually inferred they would meet and spend time with Ms. Fawcett or a live cougar were they to purchase a Mercury Cougar."
Smoking as risky behaviour
In contrast to tobacco advertising, the messages that might factor into young people smoking, he said, might come from government when it warned about the dangers of smoking. These messages might backlash "in so far that it communicates the risks of smoking" to young people who are interested in taking risks.
Justice Riordan may have thought that Mr. Soberman was missing the point. He asked the witness whether tobacco ads might not generate interest in risk-taking by youth, and cited ads which showed skiiers contemplating a dangerous run.
"You are not interpreting the ad in the way that the person who sees the ad would think about it'" Mr. Soberman answered. "Advertising operates at a level where people aren't thinking about it too much."
No impact on consumption
As Mr. Heckman had done earlier this week, Mr. Soberman cited endogeneity as the reason that advertising was sometimes improperly related to an increase in tobacco use. He relied on the same studies as the previous witness to conclude that "advertising doesn’t seem to have an effect on tobacco prevalence."
Brand choice
Mr. Soberman was firm that the only reasons that JTI-Macdonald marketed its brands was to encourage smokers to try their brands, to maintain brand loyalty among existing smokers, and to increase the brand equity. Moreover, they had no choice but to do so: as the smallest tobacco company they had to advertise or die.
He came at this conclusion from several angles: his reading of their marketing reports, his own experience as a marketer, modern theories of marketing, the return on business investment.
He calculated that each percentage point of the Canadian market, expressed in 2010 dollars, was worth $9 million to JTI-Macdonald or any other company. (He did not use the same method to calculate the costs to Canada of each percentage point of the tobacco market -- $170 million in 2002!)
Advertising "added value" to a brand, encouraging smokers to be willing to pay more for their cigarettes. Just as people are willing to pay more for Coca Cola than a generic soft drink, they are willing to pay more for brand name cigarettes than for generic brands. The "brand equity" produced by advertising lasts over time, but not indefinitely -- the ads must be sustained.
The prisoner's dilemma
He appealed to game theory to explain why tobacco companies were compelled to advertise even though it might not be in their collective interest to do so. The "prisoner's dilemma", explained why they would be prepared to lose money in advertising.
Although his phenomenon has been used to explain why American companies adopted a voluntary ban on television ads in the early 1970s, Mr. Soberman said that companies would still be expected to fight against ad bans even with knowledge of this dilemma.
"It does not capture the full richness of the market. Image marketing allows them to create brand equity and generate significant profits. In a world where you cannot market at all, the images become very week. This changes dimension from image to pricing, which is generally bad for firms."
Facts? Opinions?
Mr. Mitchell raised a number of allegations that have been made against JTI-Macdonald and asked Mr. Soberman to reply to them. Their adherence to the voluntary code. Their market research on young people. Their marketing of light cigarettes. The impact of spill-over advertisements. Their controversial campaign for Tempo cigarettes.
A good half of Mr. Soberman's testimony was on general marketing practices, and he drew on these to interpret documents from JTI's records to refute each of these suggestions, i.e. "My findings would be that the evidence I reviewed indicates that the marketing of JTI-Macdonald was in all cases directed towards people who were 18 years of age or older."
There was much in these questions and answers that made him sound more like a fact witness for the company than as an expert witness for the court -- a point that plaintiff lawyer, Bruce Johnston, put to Justice Riordan at the end of the day.
Mr. Soberman's testimony continues on Tuesday and Wednesday next week.
Wednesday, 15 January 2014
Day 199: Wet, dull, dreary
Pathetic fallacy, as my grade 9 English teacher described it, was the literary tendency of the weather to mirror the mood. Would false pathos then be the tendency of the mood to mirror the weather?
If so, we can blame the overcast skies and the unseasonable drizzle for what turned out to be a gloomy short week at the Montreal tobacco trials with virtually no bright moments or clear focus.
By noon today, Mr. Peter Hoult had finished his seventh day of testimony - the last three of which were part of JTI-Macdonald's defence against claims of wrongful behaviour by the company during four decades. (Mr. Hoult was a senior executive with the company for five of those years.)
This morning and yesterday afternoon it was the plaintiff's lawyers, André Lespérance and Philippe Trudel, who were putting their cross-examination questions to Mr. Hoult. This was no harsh interrogation: with their disarmingly gentle affect, they both engaged Mr. Hoult in an almost conversational way about the events during his career at RJR-International, including the time he spent in Canada.
This is not the fastest way to get an answer -- especially from a man who doesn't seem inclined to say "yes" or "no" when a paragraph of explanation will do. But it was a successful way to invite this talkative man to extemporize on topics that he may not have fully rehearsed with Doug Mitchell or other JTI-Macdonald lawyers. Some of his off-the-cuff comments - like those where he comfortably acknowledged the way in which lighter toned cigarette packages were known to convey a healthier brand - were unusually frank admissions.
I came away with the feeling that Mr. Hoult's comments this week are as likely to find their way into the plaintiff's closing arguments as they are to the defendants.
What's the information again? Risk? Romance?
Twice Mr. Mitchell had asked for his witness to describe the informational content in RJR/JTI-Macdonald advertisements. The purpose, he said, was to rebut the statement of the plaintiffs' expert witness in advertising that tobacco ads were devoid of information.
Both Mr. Lespérance and Mr. Trudel mimicked this approach, inviting Mr. Hoult to make further comments on other ads. He was shown examples of Export A "A taste for adventure" campaigns that were run when he was president of the company. (Exhibits 1381.39, 1381.40, 1532.5).
Kayaking! Skiing! These were very different ads than the static smoker shown earlier in the week by Mr. Mitchell. (Mr. Hoult explained that the selection of documents was not made by him).
Nonetheless, Mr. Hoult saw them as sending "not an entirely different message ... The theme of the trucker was the great outdoors – this is exactly the same thing.... it's an enrichment of the message." He did not agree with Mr. Lespérance that these ads promoted health. "They are promoting a vigorous, adventurous activity outdoors."
But what of the request made by the health minister in 1977 that the companies' take note of his "special concern about the association of cigarette smoking with any pursuit that requires a high degree of fitness," and the "inherent incompatibility between smoking and sports generally." (Exhibit 1558) Mr. Hoult said he was "totally unaware" of this request - even though he had earlier testified about extensive briefings about constraints on marketing in Canada.
Nonetheless, he did not share the minister's concerns. "I know many people who smoke and play soccer – and I did myself." Besides kayaking and skiing "are not sports in the conventional sense – they are more activities. I don’t think you necessarily require a high degree of fitness to indulge in these activities." Nor did he think that skiing was risky:
When, much later, Mr. Trudel asked him whether or not the Macdonald Select ad did not associate smoking with romance, Mr. Hoult agreed that it did. But not in a way that offended CTMC rule number 8 that forbid promoting a brand as an "essential" element of romance.
Health information too
Although all of the advertisements shown had health warning messages, Mr. Hoult not once identified the information conveyed in the ads to include a caution about the consequences of using the product!
But he acknowledged that the ads did contain health-related information. "Both these packs are white. White communicates lightness - dark colours the opposite... At a more specific level, the name on the packs is in different colours: one is red, a milder, fuller flavour; blue is cooler and menthol is traditionally associated with green"
"We knew from our research on many occasions that this association [between strength of cigarette and harmfulness] was there - that lighter cigarettes were better for you because they were lower in tar and nicotine."
Mr. Hoult said that he felt the company had no responsibility to further communicate the risks of smoking. These were "totally understood" 'It was perceived throughout Canada, among the general population, that cigarette smoking was a risk. even stronger than that – that cigarettes kill you."
Moreover, the government was "vigorously" communicating the dangers, and with its greater credibility the work was "being carried out more effectively than if we had done it ourselves."
Not concerned with communicating to youth
To this outsider, a curious idiosyncrasy of the trial process is the gauntlet that has to be run to establish something as a fact, even when it is something that would be considered authoritative in another source.
Mr. Hoult's presence -- and the fact that one of the documents introduced by the defendants made reference to Print Measurement Bureau figures -- was the device that Mr. Lespérance needed to put on record how many Quebec youngsters would have seen tobacco ads that were promoted in the satirical monthly, CROC. (Exhibit 1675, 1676-2M).
As he was taken through the calculations of the Prime Measurement Bureau, Mr. Hoult acknowledged that one-quarter of the readership of the magazine were youngsters aged 12-17, and that 1 in 5 Quebecers in that age range read the magazine.
This did not, however, concern him. "I certainly acknowledge that the magazines would reach these people... Now, whether the numbers are large or small is not the issue of concern."
"When I say 'of no concern,' I have to say, without sounding irresponsible, that I don't believe that exposure to advertising to these people that you've talked about, these under eighteen-year-olds, is the factor in ...causing them to smoke." He cited other factors - like peer pressure and parental attitudes.
Covering up (ventilation holes)
From his answers, it would appear that Mr. Hoult had not been rehearsed to answer questions about the decision of RJR-Macdonald to put ventilation holes on its cigarettes so close to the end that they were potentially blocked by the lips of smokers. Given the large number of documents on the trial record about concerns with his company's brands, this seems like an odd oversight.
Even before Mr. Hoult began working at RJR-Macdonald, senior officials at Health Canada had written the CTMC to request that the companies take on the "manufacturer's responsibility to inform his customers" about the potential of lip blocking to make the tar and nicotine values on the package misleading. (Exhibit 50014)
Mr. Hoult said today that he was unaware of the request -- and suggested that the companies would not have acted on it unless there had been a series of meetings and discussions with the government first. It certainly was "not enough" for the government to merely ask.
In the mid 1980s, Imperial Tobacco had found that Export A Light cigarettes were the Canadian brand with the holes closest to the lips. (Exhibit 285). Mr. Hoult, who was not in Canada at that time, had no recollection of that complaint, and agreed that, if the facts were valid, the values on their packages of cigarettes would be rendered meaningless.
Perhaps he did not realize that he was being set up to comment on another old exhibit at this trial (Exhibit 626) in which the senior RJR-Macdonald scientist complained of resistance to the movement of the holes, or to changes to the measurement method that would overcome this design advantage . "I was unable to change the attitude of Senior Management, to a lengthening of the filter and moving the holes further away from the mouth end to prevent lip coverage of the first or even the first and second line of holes."
An earlier memo pinned the decision on Mr. Hoult as a member of the reluctant senior managers. "PJH, yourself and myself decided to let this particular positioning of the holes continue... unless a major issue came of it (in which case we would plead lack of realisation of a problem)." (Exhibit 623).
If so, we can blame the overcast skies and the unseasonable drizzle for what turned out to be a gloomy short week at the Montreal tobacco trials with virtually no bright moments or clear focus.
By noon today, Mr. Peter Hoult had finished his seventh day of testimony - the last three of which were part of JTI-Macdonald's defence against claims of wrongful behaviour by the company during four decades. (Mr. Hoult was a senior executive with the company for five of those years.)
This morning and yesterday afternoon it was the plaintiff's lawyers, André Lespérance and Philippe Trudel, who were putting their cross-examination questions to Mr. Hoult. This was no harsh interrogation: with their disarmingly gentle affect, they both engaged Mr. Hoult in an almost conversational way about the events during his career at RJR-International, including the time he spent in Canada.
This is not the fastest way to get an answer -- especially from a man who doesn't seem inclined to say "yes" or "no" when a paragraph of explanation will do. But it was a successful way to invite this talkative man to extemporize on topics that he may not have fully rehearsed with Doug Mitchell or other JTI-Macdonald lawyers. Some of his off-the-cuff comments - like those where he comfortably acknowledged the way in which lighter toned cigarette packages were known to convey a healthier brand - were unusually frank admissions.
I came away with the feeling that Mr. Hoult's comments this week are as likely to find their way into the plaintiff's closing arguments as they are to the defendants.
What's the information again? Risk? Romance?
Twice Mr. Mitchell had asked for his witness to describe the informational content in RJR/JTI-Macdonald advertisements. The purpose, he said, was to rebut the statement of the plaintiffs' expert witness in advertising that tobacco ads were devoid of information.
Kayaking! Skiing! These were very different ads than the static smoker shown earlier in the week by Mr. Mitchell. (Mr. Hoult explained that the selection of documents was not made by him).
Nonetheless, Mr. Hoult saw them as sending "not an entirely different message ... The theme of the trucker was the great outdoors – this is exactly the same thing.... it's an enrichment of the message." He did not agree with Mr. Lespérance that these ads promoted health. "They are promoting a vigorous, adventurous activity outdoors."
But what of the request made by the health minister in 1977 that the companies' take note of his "special concern about the association of cigarette smoking with any pursuit that requires a high degree of fitness," and the "inherent incompatibility between smoking and sports generally." (Exhibit 1558) Mr. Hoult said he was "totally unaware" of this request - even though he had earlier testified about extensive briefings about constraints on marketing in Canada.
Nonetheless, he did not share the minister's concerns. "I know many people who smoke and play soccer – and I did myself." Besides kayaking and skiing "are not sports in the conventional sense – they are more activities. I don’t think you necessarily require a high degree of fitness to indulge in these activities." Nor did he think that skiing was risky:
Health information too
Although all of the advertisements shown had health warning messages, Mr. Hoult not once identified the information conveyed in the ads to include a caution about the consequences of using the product!
But he acknowledged that the ads did contain health-related information. "Both these packs are white. White communicates lightness - dark colours the opposite... At a more specific level, the name on the packs is in different colours: one is red, a milder, fuller flavour; blue is cooler and menthol is traditionally associated with green"
"We knew from our research on many occasions that this association [between strength of cigarette and harmfulness] was there - that lighter cigarettes were better for you because they were lower in tar and nicotine."
Mr. Hoult said that he felt the company had no responsibility to further communicate the risks of smoking. These were "totally understood" 'It was perceived throughout Canada, among the general population, that cigarette smoking was a risk. even stronger than that – that cigarettes kill you."
Moreover, the government was "vigorously" communicating the dangers, and with its greater credibility the work was "being carried out more effectively than if we had done it ourselves."
Not concerned with communicating to youth
Mr. Hoult's presence -- and the fact that one of the documents introduced by the defendants made reference to Print Measurement Bureau figures -- was the device that Mr. Lespérance needed to put on record how many Quebec youngsters would have seen tobacco ads that were promoted in the satirical monthly, CROC. (Exhibit 1675, 1676-2M).
As he was taken through the calculations of the Prime Measurement Bureau, Mr. Hoult acknowledged that one-quarter of the readership of the magazine were youngsters aged 12-17, and that 1 in 5 Quebecers in that age range read the magazine.
This did not, however, concern him. "I certainly acknowledge that the magazines would reach these people... Now, whether the numbers are large or small is not the issue of concern."
"When I say 'of no concern,' I have to say, without sounding irresponsible, that I don't believe that exposure to advertising to these people that you've talked about, these under eighteen-year-olds, is the factor in ...causing them to smoke." He cited other factors - like peer pressure and parental attitudes.
Covering up (ventilation holes)
From his answers, it would appear that Mr. Hoult had not been rehearsed to answer questions about the decision of RJR-Macdonald to put ventilation holes on its cigarettes so close to the end that they were potentially blocked by the lips of smokers. Given the large number of documents on the trial record about concerns with his company's brands, this seems like an odd oversight.
Even before Mr. Hoult began working at RJR-Macdonald, senior officials at Health Canada had written the CTMC to request that the companies take on the "manufacturer's responsibility to inform his customers" about the potential of lip blocking to make the tar and nicotine values on the package misleading. (Exhibit 50014)
Mr. Hoult said today that he was unaware of the request -- and suggested that the companies would not have acted on it unless there had been a series of meetings and discussions with the government first. It certainly was "not enough" for the government to merely ask.
In the mid 1980s, Imperial Tobacco had found that Export A Light cigarettes were the Canadian brand with the holes closest to the lips. (Exhibit 285). Mr. Hoult, who was not in Canada at that time, had no recollection of that complaint, and agreed that, if the facts were valid, the values on their packages of cigarettes would be rendered meaningless.
Perhaps he did not realize that he was being set up to comment on another old exhibit at this trial (Exhibit 626) in which the senior RJR-Macdonald scientist complained of resistance to the movement of the holes, or to changes to the measurement method that would overcome this design advantage . "I was unable to change the attitude of Senior Management, to a lengthening of the filter and moving the holes further away from the mouth end to prevent lip coverage of the first or even the first and second line of holes."
An earlier memo pinned the decision on Mr. Hoult as a member of the reluctant senior managers. "PJH, yourself and myself decided to let this particular positioning of the holes continue... unless a major issue came of it (in which case we would plead lack of realisation of a problem)." (Exhibit 623).
Covering up (document tampering?)
Mr. Hoult had opened his testimony on Monday by clarifying that he had never intended to suggest that RJR-Macdonald had "purged" its records of references to young people.
In response to Mr. Lespérance's questions (and Exhbits 656 and 656 A which leave a very different impression), Mr. Hoult further clarified that there was no special effort to cleanse the records of references to young people. "I was talking about all documents, not just under age smokers. Purging as we defined it took place in all companies – simply getting rid of information ."
Documents, in this business, sometimes "speak for themselves." Ah, but how to interpret those that have been extinguished?
Balls in the air
A few hints were floated this week about the road ahead:
In response to Mr. Lespérance's questions (and Exhbits 656 and 656 A which leave a very different impression), Mr. Hoult further clarified that there was no special effort to cleanse the records of references to young people. "I was talking about all documents, not just under age smokers. Purging as we defined it took place in all companies – simply getting rid of information ."
Documents, in this business, sometimes "speak for themselves." Ah, but how to interpret those that have been extinguished?
Balls in the air
A few hints were floated this week about the road ahead:
- Mr. Lespérance reported yesterday that he anticipates two weeks' of trial in "counter-proof" and that he intends to call a small number of experts at that time. One who will be new to the trial is Professor Paul Slovic.
- A motion to amend the pleadings is in the offing -- Imperial Tobacco seems to think it is more contentious than Justice Riordan seems to.
- The "admissions" which Imperial Tobacco is seeking to avoid Simon Potter testifying have yet to be agreed to. This too may require more court time.
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