Day 171: Tony Kalhok (bis)

There were some unexpected events in store when the Montreal Tobacco Trials resumed this morning after a two-week break.

An untenable status quo

The first surprise was the change in the day's schedule to allow for contentious case management discussions.

Imperial Tobacco's counsel, Craig Lockwood, opened by reminding Justice Riordan that the rationale behind the extended break had been to allow their team to propose a way to reduce the number of federal government witnesses. (By my count, there are 27 federal representatives now scheduled to testify between December to March).

The approach they took had been in the works for a much longer time. "Close to two months of solid work" had been invested in a document sent to the plaintiffs last Thursday. In it were 150 proposed admissions based on 400 or more documents that, if the plaintiff's agreed, would reduce the number of government witnesses to a mere 10.

(Like an iceberg, much of this case lies out of view, and the document in question was never shown on the screens, nor fully described. As best I gathered, it was written in the form of a narrative that tells Imperial Tobacco's version of events regarding what the federal government knew and did over several decades.)

Mr. Lockwood sounded aggrieved at the response his offer had received.  "We received yesterday a rather 'pithy' e-mail ... I had another word for it, but I will go with 'pithy'."  The plaintiffs had refused this offer of admissions that "were not controversial or excessive in any way."

Within the Osler team at this trial, Mr. Lockwood has a pretty laid-back courtroom style. Nonetheless, he seemed a little riled up as he explained the impact of the plaintiffs' decision. His finger pointing accusingly, he warned this response "puts the court in an untenable position." 

"We are now going to have to issue subpoenas" he said. With some of the witnesses in elderly or frail conditions "we will have a fight over capacity, and they will have to retain counsel for why they can't testify."  (I had trouble understanding how this "untenable position" was any different than the status quo that has been in place for several months, but he made it sound as though the refusal of their offer resulted in a material change in circumstances). 

Mr. Lespérance gave the plaintiff's view: this approach had not met the objective of saving time. "For us to go through those 400 exhibits and thousands of pages we received last Thursday will take us as long to review as it took them to write it."  The quo was not worth the quid.

Permission was extended for Justice Riordan to receive the document, and he scanned through it as he listened to both sides. He seemed to appreciate the usefulness of the narrative framing  ("this might be the chronology I was asking for!"), but did not express support for it as a way to shorten the witness list. Better, he suggested, would be something in the form that identified what each specified witness could have been expected to say.

Moreover, he said, he would have to take the same position he had adopted earlier in the trial when the industry was the one refusing to concede. "I can't force people into admissions."

The plaintiffs had made a counter proposal, suggesting that the defence team could enter documents without witnesses, without the need for a 2870 process, and "without reserve" - provided, of course, that the plaintiffs' could do the same for rebuttal documents.

Mr. Lockwood seemed unsatisfied with this suggestion. "We want to see what their view of  the case is.... We need to have a sense of what the plaintiffs' version of the government story is."  

Mr. Potter seemed to have a longer-term horizon, perhaps thinking of the Appeal Court.  "One day, this court or others are going to be pointed to a document, and someone is going to say that no witness spoke, and that the court can give the documents the weight they deserve. We want it in a format that any court will be able to say that it is a fair representation."  

This felt like round one in yet another tussle over the defence witness list.

The Potter File

There was a second set of proposed admissions shared with Justice Riordan this morning (alas, also not shown to the spectator's gallery). These concerned a way to avoid Simon Potter being put on the witness stand.

Justice Riordan has repeatedly made it clear that he does not want Mr. Potter to testify in this trial given his role as counsel for one of the parties (Rothmans, Benson and Hedges). The judge has leaned heavily on both sides to find a way to make this testimony unnecessary.

But it would appear that Imperial Tobacco's approach in this case was no more acceptable to the plaintiffs than the first set discussed this morning had been. And this time Justice Riordan made it clear that he also was not happy with the proposal.

He directed Suzanne Côté to redo her offer.  "The way it is formulated, it seems to be a way of providing proof on document retention, not just what Mr. Potter would be saying....It is not an appropriate statement for an admission." 

Disappearing witnesses? Disappearing trial days!

The remaining case management discussion today was equally unsuccessful at reaching any resolution about what to do about the case of the dropsies that has infected the defence witness list. Witnesses keep falling off!

More cuts were announced today. ITL's former president, Benjamin Kembal, is apparently no longer required. Justice Riordan was pushed hard to blink and agree to suspend hearings while a related case is heard in mid-November.

The combined effect is dramatic: After the adjustments announced today, it would appear that in the 34 sitting days between now and Christmas there are currently 10 days with no witnesses scheduled.

And to think that only a few months ago Justice Riordan thought it necessary to rule against an excessively long defence!

And then there were seven

Justice Riordan announced today that he planned to combine two of the "eight common questions" that were inherited from the decision to certify the cases.

Instead of deciding separately "Did the defendants implement a systematic policy of non-disclosure of these risks and dangers?" and "Did the defendants trivialize or deny these risks and dangers?" he now proposes to answer the new question: "Did the companies trivialize or deny, or employ a systematic policy of non divulgation, of such risks and dangers?"

(The seven questions, as revised, are shown below).

The repeated testimony of Mr. Kalhok

.

It was late in the morning before Anthony Kalhok made his eight appearance at this trial. (As always, he was accompanied by his wife and his wide smile).

His testimony was most surprising -- there were no surprises!

The only other "inside" witness called by Imperial Tobacco todate (agronomist, Gaetan Duplessis) was the source of fresh evidence - and some pretty eye-popping facts about Agriculture Canada's tobacco strategies.

No such luck this time. Mr. Kalhok had no new information to provide to the trial. Not even a single piece of new evidence!

Instead this witness was taken through pretty much exactly the same issues that had kept him busy during his 7-day appearance as a fact witness for the plaintiffs,  He was asked similar questions and gave similar answers. 

Mine were not the only eye-brows raised at this approach. Plaintiff lawyer  Pierre Boivin objected to the re-hash of previous testimony. Eventually, Justice Riordan did too. But Mr. Lockwood pushed back and asked for some slack.  

"I take your point," he told the judge. "But we’re asking for one day – less than one day!" He wanted Mr. Kalhok - whose legacy was "being attacked" to be able to tell his story.

Justice Riordan relented. "Okay. You want it all in one place. - It would be faster to let you proceed than to argue it with you." 

A consolidation

It took Mr. Lockwood and Mr. Kalhok less than two hours for this story to be told.

Mr. Kalhok explained that by orienting the entire organization towards "the satisfied smoker," the research planning group played a pivotal role not only in its long term projections (that assisted IMASCO's diversification activities) but also by determining production runs. "Players and duMaurier were produced on Monday and smoked on Friday."

"Our one objective was to to gain market share at the expense of  our competitors," he said. The company never worked to create a demand for cigarettes - doing so would have been ineffective, he said.  "It was a saturated market. Everyone who wanted to smoke  was doing so. It was the same as with cars -- you didn’t try to change a market demand. It was there." 

There was nothing nefarious in their approach. They did not target youth. "No project that attempted to go there would get past me."  They did not discourage quitting. They did not try to influence the social acceptability of smoking. They sought to diversify their products, not keep smokers in the market.

Mr. Kalhok described the gradual reductions in the number of Canadians who smoked through the eyes of a marketer. "This is also part of the normal health of life cycle of brands. With hoola hoops it is six months, in smoking it is several hundred years."  

(The marketing of "light" cigarettes was similarly described in a marketers terms - "taking advantage of the realities that were out there and fully understanding a smoker's decision-making criteria for brand choice.")

Plain packaging anyone?

Despite Craig Lockwood's attempts to concentrate Mr. Kalhok's answers, there was much that this witness said that will likely never appear in BAT or Imperial Tobacco' regulatory submissions to governments. 

The cigarette package was the embodiment of marketing efforts, he said. "Smokers wear it. If they pull out a particular brand it says something about them. They would select the brand that would reflect them." "At the end of the day, the primary communicator to smokers was the package. Everything else was incorporated into that."

More objects in the rear view mirror

For the last 90 minutes of the afternoon, André Lespérance cross-examined Mr. Kalhok. 

He took the witness through a series of documents that seemed at odds with the story presented earlier in the day. These included records of Mr. Kalhok's participation in the recruitment of Hans Selye to testify about the benefits of smoking, decisions of a CTMC committee to "strongly resist" the federal government's requests for curbs on marketing, the view within the company that tar and nicotine levels in advertising were an implied health claim, the targetting of Player's Light marketing efforts to young smokers, and the detailed analysis of how health concerns affected brand preferences.

Mr. Kalhok could not provide the same level of crisp responses to these documents as he had earlier in the day. At times he seemed to struggle (or bypass) the meaning behind the questions. For the most part these documents were left, as they say in this trade, to speak for themselves.

The revised common questions 1. Did the defendants manufacture, market, commercialize a product that was dangerous and harmful to consumers' health?  2. Did the defendants know and were they presumed to know the risks and dangers associated with the consumption of their products?  3. Did the companies trivialize or deny, or employ a systematic policy of non divulgation, of such risks and dangers? 4. Did the defendants set up marketing strategies conveying false information on the characteristics of the goods sold?  5. Did the defendants knowingly place on the market an addictive product and did they purposely refuse to use parts of tobacco with nicotine levels low enough to end the addiction of a large number of smokers?  6. Did the defendants conspire amongst themselves to prevent the users of their products from being informed of the dangers inherent to the consumption of their products?  7. Did the defendants intentionally infringe upon the right to life, safety and integrity of the members of the group?

Tuesday's session at the trial has been cancelled. On Wednesday and Thursday, Mr. Ed Ricard and Mr. Gaeten Duplessis will testify.

Day 121: A natural experiment in courtroom tactics

There was a full plate of issues waiting when Justice Riordan opened today's session at the Montreal tobacco trials. The plaintiffs are dotting the i's and crossing the t's on the evidence they have spent almost a year putting on the record. At the same time, the defendants are trying to better position themselves on the starting blocks for their defence which will start no sooner than they can help.

Courtroom observers don't witness the issues that are settled without Justice Riordan's assistance. But in this trial, I get the impression that there are few issues that are not so contentious as to require his hands-on management. Today there were many that only he could settle -- too many for a short blog and just enough for an interesting and dynamic day in court.  More details tomorrow.

Warning: More expert witnessess!

Several weeks ago, the defendants suggested that they would be seeking authority for additional witnesses to provide expert testimony about health warnings. Today was the day that this request was formally made.

Suzanne Côté led off  by presenting legal reasons why this should be allowed. She took little time before reminding Justice Riordan of his reflections last September 12 when allowing CTMC documents to be subpoenaed. "Let's be realistic. We are looking at a case where the potential stakes exceed $20 billion dollars. It is therefore essential that the Court receive all evidence that is pertinent and available, whether it favours the suit or opposes it." (my translation).

After he had his views read back to him, Justice Riordan smiled and asked for the plaintiff's preliminary reaction before hearing further arguments. He was told that their side had no philosophical problems with the request, but were concerned about any potential delay.

Clearly telegraphing that he was open to the suggestion for new witness, Justice Riordan heard Simon Potter explain the rationale behind the request. The reason given was that the plaintiffs case "had evolved" and was putting more emphasis on the type of warnings than simply the fact of whether warnings were there.

"What we have seen over the past months of trial is that it wasn’t one warning that was missing, but scores and scores of different warnings... The suggestion is that the government mandated warning was not enough and that it should have been accompanied by a cacophony of other warnings."  

Simon Potter explained that this "cacaphony" had motivated the defence to seek expertise on the following questions:
- "would different warnings have had any real effect on the market place"
-  "would a number of different warnings over time have had any beneficial effect on consumers’ assessment of the risk they were deciding to take"
-  "what is the science of warnings."

JTI-Macdonald's lawyer, Francois Grondin, was the third on the match, and he was the one fingered for Justice Riordan's hard questions about the request. "Is it only in the past month that the companies have recognized warnings as an important element?" the judge asked in a clearly doubting tone. "Why didn’t you anticipate this need in the beginning?"

Mr. Grondin is the boy-scout on the defense team, and squirms a bit when giving flimsy answers. "We need to eliminate the distortion that was put in the case," he tried to explain, but offered no further details about the development of this request.

André Lespérance, however, hinted at another reason the defendants might have changed their plans. The request for new warnings witnesses came after Robert Proctor had trashed the approach taken by the historians hired to argue that there was high public public knowledge of the risks of smoking.  "Will they retire their other experts?" he suggested.

Before long, Justice Riordan gave the industry permission to file two additional reports on warnings, and gave them the deadline of Tuesday, June 25th to do so. "We want them to have the [St. Jean-Baptiste long] weekend to work on them," he teased.

Be careful how you answer the phone!

Quebecers might want to be alert to the fact that Imperial Tobacco has a survey "in the works" that will look at "whether any of the conduct of the defendants had any impact on any class member."

After a long silence on the topic, Justice Riordan spontaneously raised the issue of whether Imperial Tobacco still intended to conduct a public survey for the trial. He forced Deborah Glendinning to answer his question  "Do you wish to have authorization and why?" 

"We had hoped to have it underway already," she explained, but it was "delayed due to scheduling and other issues. At this point the earliest I think we could probably have it completed would be hopefully by the summer break." 

While my mind was cynically wondering how many surveys were underway in order to get the results they wanted, Justice Riordan asked a more basic question. "You are doing an actual survey? In 2013? About what went on in 1950?"

No specifics were given. Ms. Glendinning said only "I would rather not get in the details of what we are investigating – it is going to be a survey of people who would be in the class and would have something to say."

Justice Riordan referred to his previous decision to allow such a survey, but ordered that it also be filed no later than June 25th.

Cutting the pie

Despite repeated requests from Justice Riordan for the companies to produce a joint statement of their respective market shares during the years relevant to this trial, the companies have failed to do so.

So it was the other side that got the ball rolling today as their young team-member, Gabrielle Gagné, presented her research effort to assess market share across the three companies dating back to 1956. On an excel sheet she had identified varying estimates of the (national) market share, linking it to the relevant document source. When there were different estimates for the same year, she had calculated an average figure.

Justice Riordan seemed suitably impressed with this report, which is now Exhibit 1437.  His opinion was not shared by Imperial Tobacco, however. Craig Lockwood complained that the data was for national sales, and did not necessarily reflect the situation in Quebec. He was also concerned that it was based on estimates, and not actual sales. "It doesn't tell you what you need to know."

This was Justice Riordan's cue to remind the companies that the ball was in their court to provide different numbers. "If you can come with an agreement among you, then I would be hard pressed not to accept that. In the absence of that ability then I would guess that each company would have its own version... I want evidence on this point."

Taking it up a level

There are two main categories of exhibit evidence in this trial.

The higher level is given to documents that were properly introduced through a witness who appeared at the trial or which were ruled on favourably under the provisions of Article 2870 of the procedural code.

The lower level is given to those documents that were introduced without a witness and by virtue of Justice Riordan's ruling on May 2, 2012. These "May 2nd documents" are designated with a "2M" code. They are  papers that were provided by the defendants during the pre-trial exchange of material but for whom the author or recipient was not available to testify about them.

Because the second category of documents carry less weight in the trial, the plaintiffs are trying to promote important or useful documents "2M" exhibits to the higher category. To do this they can either reach an agreement with the defendant company involved, or they can subpoena a witness to testify whether he or she received or wrote the document in question.

Today both approaches were used. This provided a natural experiment where the different strategies of the defense teams produced very different results.

Option 1: minimize witness time

Mr. Simon Potter has consistently tried to limit the appearance at this trial of former or current employees from Philip Morris International/Rothmans, Benson and Hedges and has on at least a few occasions reached agreements with the plaintiffs to achieve this goal.

Today he had agreed to allow a number of RBH documents to be put into evidence or to have the "2M" designation removed because doing so avoided Mr. Heffernan being called to testify.  "All these documents are the result of a deal really – there is no other word for it – a practical deal reached in order to avoid needless travel by Mr. Heffernan,"  explained Mr. Potter. 

His strategy resulted in several damaging documents gaining strengthened status, but no damaging testimony from Mr. Heffernan. (A list of new exhibits from RBH appears below).

Option 2: make no concessions

Unlike RBH,  BAT/Imperial Tobacco has not shown much interest in accommodating the introduction of documents through agreement. The result is that the plaintiffs must recall witnesses from that company in order promote "2m" documents to more powerful level of evidence.

André Lespérance suggested on Monday that this was a waste of time, but Imperial Tobacco's lawyers held firm. "We are not going to simply have the documents dumped into the record without them being put in context," Ms. Glendinning had said.

Former marketing vice president, Mr. Tony Kalhok, is the first witness to be recalled for this purpose. He came willingly (without a subpoena) and brought with him the same bonhomie shown when he first testified over 10 months ago.

It took very little time for Ms. Gabrielle Gagné to have Mr. Kalhok confirm that he was the recipient or author of dozen or so documents under discussion and for Justice Riordan to agree to remove the "2M" designation from these exhibits. (1015, 1026, 1029, 1035, 1039, 1044,  1045, 1051, 1056, 1063, 1065, 1073, 1074, 989.3).

It was when Imperial Tobacco's lawyer began to put these documents "in context" that the comedy began.

Mr. Lockwood began by fishing for Mr. Kalhok to say that a research report (Exhibit 989.3) would have had little impact. "Did this exploratory research involve anything that went to market?" asked.

He didn't get the answer he wanted. "If we ran Matinée advertising afterwords, it probably did. We did not do exploratory research just for the point of doing exploratory research," said Mr. Kalhok proudly.

Mr. Lockwood tried again. "Would you say that Imperial Tobacco did a significant amount of research that did not result in a market product?"  Again, Mr. Kalhok refuted his point. "Not at this time."

The lawyer gave it a third try. He pointed to the "caution to the reader" that expressed the limitations of focus-group research and invited Mr. Kalhok to "comment on the accuracy" of the report.

Instead of picking up on the cue, Mr. Kalhok tried to explain that focus group research always came with a disclaimer "so people wouldn’t take it literally." When the question was repeated, the witness looked confused. "Is this a trick question?" he asked.

The smiles on the faces of the judge and many lawyers may have given a hint that there was an underlying trick, but in any case, Mr. Kalhok put to rest any idea that he might not see the research as valid. "Paul Crocker was very reliable which is why we used him."

The fun continued. A similar opportunity for him to cast doubt on research conclusions became a shout-out to a former colleague. "Jim Uniacke was a thorough person, so they are probably reliable."

Not surprisingly, Mr. Lockwood soon decided he had no further questions. Justice Riordan thanked the affable witness, and recalled Mr. Kalhok's scheduling concerns of a year ago by wishing him "good curling." (In a trial this long, it's good to know the judge has a great memory.)

Imperial Tobacco's strategy resulted in several damaging documents gaining status, and also some very unhelpful testimony. Today, at least, Mr. Potter made the better call.

(Mr. Kalhok is currently scheduled to testify for 3 days as a witness for Imperial Tobacco. I think after today's answers might have bought himself three more leisure days next fall!)

New Exhibits 

Exhibits newly introduced today (which, to confuse the story, also include some new "2M" records) include:
- a survey questionnaire aimed at people as young as 15 (Exhibit 1439),
- a 1981 marketing strategy by Rothmans' South African directors (Exhibit 1440),
- a 1988 product design meeting which reveals that burley tobacco was used in some blends, and that CO levels were not honestly reported on packages (Exhibit 1442),
- a 1987 memo that shows that RBH felt Imperial Tobacco was understating the actual tar levels on its brands and that nicotine levels were being increased (Exhibit 1443),
- a top-level plan from 1982 to help the company reverse its dwindling market (Exhibit 1444),
-a document from a decade later on the companies "slide from hell" (Exhibit 1445),
- a market review from 1969 (Exhibit 1446),
- a business plan from 1994 (Exhibit 1447).

Tomorrow  there will be arguments about the use of Article 2870 to allow more documents to be entered as evidence.

Day 25: Federal government counters industry claims

For information on accessing documents, see note at the end of this post

As it ends its second month, the trial of the Montreal class actions against tobacco companies is setting a brisker pace. The introduction of documents is faster (last week's ruling continues to be felt in new ways as previously reserved documents are being placed on record). The number of exhibits is climbing towards 500, which means there are more documents and more testimonies to refer back to.

Keeping up is an increasing challenge!

Yesterday, the sun shone on the plaintiffs, who were able to put dramatically disturbing documents on the record. Today was the federal government's turn in the light, as they were able to blunt disturbing testimony against them by two former senior officials at Imperial Tobacco - Jean Louis Mercier and Anthony Kalhok. It was also the last day on which these two men are expected to appear at the trial.

Farewell to Jean Louis Mercier

The testimony of Jean Louis Mercier was challenged in three different ways over the morning.

Firstly, Mr. Trudel (on behalf of the plaintiffs) softened the ground underneath him by producing documents that showed that, despite Mr. Mercier's earlier testimony, additives had been put in Canadian cigarettes (Exhibit 286) and that despite earlier testimony, the company sought to find "ways of telling people in a subtle and acceptable manner that it is 'alright to smoke'" (Exhibit 288). Mr. Trudel's questions about the consumer research project Plus/Minus (Exhibit 284) spurred Mr. Mercier to admit for the first time that their studies into the smoking choices of 'starters' were not only to forecast future demand (a common explanation in previous trials), but were also used to inform advertising campaigns.

The credibility of Mr. Mercier was surprisingly challenged, albeit in a polite way, by Imperial Tobacco lawyer Suzanne Coté. In her cross-examination, she suggested that Mr. Mercier was not qualified to respond to many of the questions put to him, and that Dr. Stewart Massey (a former scientist whose status as witness is not yet clear) might be "in a better position" to talk about about compensation, addiction, ames tests, causality, mouse-skin painting, etc.

But the real diminishment of this witness came when Maurice Regnier, on behalf of the federal government, came out with a one-two punch that knocked down two of Mr. Mercier's claims against Health and Welfare Canada.

(As explained elsewhere the federal government is involved in this case because the companies have filed "actions in warranty" which attempt to deflect to them responsibility for the way cigarettes were sold. In August, the federal government will try to persuade the Quebec Court of Appeal that last year's Supreme Court decision to strike down similar 'third party' motions should apply to this case. Until then, the feds are in this non-love triangle. Today was the first time in this stage of the trial that they have engaged with witnesses.)

After politely introducing himself to the witness, Mr. Regnier set quickly to the work of challenging two key charges against his client: 1) that the government had not sought a reduction in nicotine levels and 2) that there was an agreement between industry and government that the industry not communicate health risks.

Mr. Regnier's first two jabs were with letters written to the CTMC in 1976 and 1978, requesting reductions in maximum tar and nicotine levels and in market average levels (Exhibit 50001 and 50002). The Minister of Health (the Hon. Marc Lalonde) had asked the industry to reduce the maximum level of nicotine in cigarettes, and the assistant deputy minister (Dr. Alex Morrison) had requested a reduction in the market average nicotine levels.

Would you not now admit that the government also asked you to reduce nicotine ?
Yes.  

16 varied warnings appeared
on Swedish cigarette
packages after 1975

Mr. Regnier's second third and fourth jabs were an exchange in 1977 between Dr. Morrison and Mr. Paul Paré (then head of the CTMC and also Mr. Mercier's boss). Health and Welfare Canada was seeking industry agreement to more than a dozen undertakings, included in which was one for the companies to "adopt the use of several different educational messages as is being done in Sweden." (Exhibit 50003)

Do you remember what the companies said in response?
I don’t.

Not surprisingly, Mr. Regnier had the answer on hand. (Exhibit 50004) Five months after receiving Dr. Morrison's request, Mr. Paul Paré, chair of the CTMC and also Mr. Mercier's defacto boss, replied:
We disagree with this type of activity--member companies should continue as communicators of information to smokers about their own brands, but cannot be reasonably expected to advertise or promote the concept that people should not smoke, or that smoking is bad for you.

Did Imperial Tobacco ever change its mind about this policy (of not promoting the concept that smokign is bad for you)? Not really, conceded Mr. Mercier.  

At 12:45, Justice Riordan and Mr. Mercier thanked each other, and the former president left the court.



The return of - and farewell to - Anthony Kalhok. 

Mr. Kalhok had last been seen on April 18, and had returned to allow the federal government to conduct its cross examination. The delay had served to allow time to assemble documents to challenge his assertion that Health Canada, through a personal meeting between Tony Kalhok and with assistant deputy minister Dr. Alex Morrison, had explicitly approved the marketing of Players Lights cigarettes.

Once again, Mr. Regnier came prepared with correspondence between Health Canada and the tobacco companies that directly refuted the evidence of the witnesses. He began by reading Mr. Kalhok's answer to a question put to him by Imperial Tobacco lawyer, Craig Lockwood about the level of cooperation between the government and the company.

A complaint was lodged with Dr. Morrison in terms of that we were using the word "Light" on a product that had T&N delivery that was not in the category of the Matinées and Craven "A"s, and therefore we were perhaps being misleading. And so I invited Dr. Morrison to come down to Montreal, which he did, and explained to him everything that we were doing, the research behind it, and that we were genuinely trying to put a product out there that would allow to switch down the tar and nicotine level.

Anyway, to make a long story short, once he heard all that, he said to us, "Go ahead, I have no problem in you using the word "Light" on Player's Light." (Transcript, April 18).

No documentary evidence of such a meeting has ever been made public, and Mr. Regnier was left with the challenge of proving the non-existence of a private meeting between two men at an unspecified time.

He did so by laying out a series of correspondence between the federal Minister and assistant deputy Minister over the time that Players was launched. Individually, each document refuted the notion that there was comfort, let alone approval, at Health Canada over the use of the name light on brands, like Players Light, which had relatively high tar levels. Collectively, they made any such meeting seem highly improbable.

On multiple occasions between 1977 and 1979, Health and Welfare Canada had repeated a concern for Players Light and for the establishment of meaningful standards for the use of such terms. On multiple times, Imperial Tobacco and Tony Kalhok had resisted these efforts.

--On April 3 1977, Dr. Morrison wrote Mr. Paul Paré (as chair of the CTMC) to express concern about the use of terms like "light" on cigarettes that were very little different from ordinary cigarettes, and singled out Players Light as an issue of concern. (Exhibit 50005)

--On May 3 May 1977, Mr. Ed Ricard (writing on behalf of ITL) responded to the letter, to defend the use of "light" as a relatiev term and to oppose a standard for the use of the term. (Exhibit 50006)

--Around September 6 1977, Dr. Morrison replied to Ed Ricard to repeat a request for "definitions of the terms "mild" and "light" and how they will be used. Again, Players Light is singled out as being problematic, in that its level of tar is almost as high (17 mg) as the highest tar level for any cigarette. (Exhibits 50009 and 50009A).

--On September 19, 1977, Tony Kalhok wrote a memo to Mr. Ricard to discuss Dr. Morrison's letter, and recommended that the company "stick to its guns" and not accept any standard for the use of terms like "light". He was available to provide further ammunition if necessary  (Exhibit 50009B) Stick to your guns. Any more ammunition. Were you at war with Dr. Morrison? Mr. Regnier asked. 

--On December 21, 1977 a meeting was held between members of Health and Welfare Canada to discuss issues. The industry adopted the position of Mr. Kalhok,s memorandum (Exhibit 50009B) - i.e. to "stick to its guns" against standards for "light" cigarettes. (Exhibit 50010)

--On October 31, 1978, another meeting was held between the CTMC and members of Health and Welfare Canada, this time including Dr. Morrison, who reports that at the next meeting he wishes to discuss "an industry standard definition of "light" and "mild". (Exhibit 50011)

Mr. Kalhok suggested that the fact Health Canada had not prevented the use of the terms "light" and "mild" supported his testimony that Dr. Morrison had wanted them to "go ahead" and that he "had no problem" with the label.

Is it your testimony that you had an agreement with Dr. Morrison on Light and Players Light?
After I had the discussion with Dr. Morrison, I do not recall any further communication either through CTMC or through Dr. Morrison that we should not continue.

Is it your testimony that at some point in time - you don't know when -  you don’t know how - he agreed with the term  Players Light?
All I can say with all this time going by that his position was such that we did nto have to change the product spec on Light or stop using the term Players Light.

It is one thing to not take any action, another to say “go ahead, I have no problem with it”
Well, that’s my recollection that once having discussed it with him that satisfied his query.

Having clarified the record that Health Canada on numerous occasions requested that the industry change its labelling of lights, Mr. Regnier finished his questions.

"Last chance" Justice Riordan prompted - looking at the company lawyers.  No one stood to offer any documentation to support Tony Kalhok's story of his meeting with Dr. Morrison.

At 4:15, Justice Riordan thanked Mr. Kalhok, who left the court - but not before shaking hands with Imperial staff lawyer John Kiser, who had made a rare appearance at the hearing and was sitting in the back row.

To access trial documents linked to this site:

The documents are on the web-site maintained by the Plaintiff's lawyers. To access them, it is necessary to gain entry to the web-site. Fortunately, this is easy to do. 

Step 1: Click on: https://tobacco.asp.visard.ca

Step 2: Click on the blue bar on the splash-page "Acces direct a l'information/direct access to information" You will then be taken to the document data base. 

Step 3: Return to this blog - and click on any links.

Day 18 : Anthony Kalhok not yet finished, but Jean-Louis Mercier begins

Former Imperial Tobacco vice president of marketing, Anthony Kalhok, was again on the stand when the Montreal tobacco trials resumed this Wednesday morning. Although the plaintiff's lawyers had finished their examination of Mr. Kalhok the afternoon before, there was still the matter of using his help to establish documents they wished to put into evidence.

Exhibit-ionism

The process of document introduction that consumed the first half of the morning was at the same time protracted and hurried -- a flurry of activity as those in front of the bar pulled up the records in question from their electronic databases, followed by irregular pauses as Mr. Kalhok looked at the papers, followed by another flurry as the documents were recorded and attention turned to a new set.

After Mr. Johnston put a few final questions about the relationship between BAT and Imperial Tobacco (to be told that the BAT family of companies was like the "old British commonwealth'), it was the turn of the defendants to ask questions.

This is the first witness for whom the Government of Canada lawyers had indicated that they might have questions. Deborah Glendinning raised concerns about the order of questioning between the defendants in the main action (the tobacco companies) and the defendants in the action in warranty (the federal government), and about the scope of questions given to the federal government.  Judge Riordan allowed that the issue was academic until the point at which the federal government had questions, and signalled that the Ms. Glendinning's colleague, Craig Lockwood, should begin his questions to Mr. Kalhok.

Imperial Tobacco questions its former vice president

In a steady rhythm, Mr. Lockwood asked Mr. Kalhok questions about Imperial Tobacco's advertising practices before turning to the relationship between Imperial Tobacco and the federal government.

Mr. Kalhok described the relationship between them as "cooperative", and then gave an example in a  communication between them regarding the use of the term 'light' on Player's light cigarettes even though the brand had tar levels higher than traditional light brands, like Matinée. "I invited Dr. Morrison to come down to Montreal, which he did," Mr. Kalhok said, and that the work of the company was explained to the Deputy Minister. "Once he heard all this, he said 'Go ahead - I have no problem.'"

At this point Maurice Regnier (who represents the Attorney General of Canada) rose to object to the question as being hearsay. The judge allowed the question. When Mr. Lockwood returned to the subject and asked how the relationship between Imperial Tobacco and the government of Canada compared with that between other companies, Mr. Regnier objected again.

Justice Riordan directly asked Mr. Kalhok whether he had been present in any direct meetings with other governments. Hearing that he had not, the judge ended that line of questions.

Mr. Lockwood turned to the question of Imperial's smoking and health policy and health claims that might have been implied (or inferred). "Did Imperial ever tell the public that light and mild was safer?" he asked.  "In those terms no," said Mr. Kalhok.

"Did the government?"

"Certainly in the brochure that came out from the health protection branch under Dr. Morrison's guidance – that pamphlet was very clear in terms of their objective – If you haven’t started, don’t. If you are a smoker, quit.  If you can't quit, smoke less. If you can't smoke fewer cigarettes, then smoke lighter cigarettes. There was a brochure.  I am absolutely certain of it."

Mr. Lockwood also asked about the numbers on the side of the pages.  They were put there, Mr. Kalhok said because "the government definitely wanted us to put them on the packages." He explained, as he had earlier in the trial, his view that smokers who wanted to reduce the amount of tar would not switch unless it was to a cigarette that was not too different than the one they were used to smoking.

Mr. Lockwood returned to some points that had been raised in earlier days.  He asked: - whether there was a difference between consumer awareness and consumer beliefs ("no");  -whether the Kwechansky study ever made its way to inform an advertising campaign ("no); -whether there was anything in Project 16 (Exhibit 142, 142a, 142b) that was contradictory to the voluntary code ("no"); - whether Imperial ever marketed to youth ("not at all"); - whether Imperial Tobacco did anything to counter the effect of package warnings ("no").

Rothmans, Benson and Hedges wades in.

Simon Potter, who once worked for Imperial Tobacco but now works for Rothmans, Benson and Hedges, began by establishing that neither questioner nor questionee could remember previously meeting.

Anthony Kalhok answered Mr. Potter's questions to say that the purpose of ITL's marketing was to steal market share, that they did not design ads for youth, and that they did not want to discourage smokers from quitting. He said he had never come to the opinion that their ads were turning non smokers into smokers. During the period he was at Imperial Tobacco, the total incidence of smoking was going "down, down, down." Market research, like Project 16, was the opposite of advertising, he contended. It is "gathering information from customers. Advertising is giving information to smokers." The vast majority of research projects - 80% to 90% never make it through to influence advertising, he testified.

On behalf of JTI-Macdonald, Mr. Pratte declined to ask any questions.

More documents on Imperial's relationship to government to come

Following the testimony about Dr. Morrison's communications with Imperial Tobacco, Maurice Regnier explained that the government of Canada would have some questions to ask, but that it would require some time to gather together the documents related to the events Mr. Kalhok had described only a few minutes before. After some discussion, Justice Riordan said the witness "had been more than cooperative" and that "he could call the shots" on which day he would return. It is not yet clear when that will be. 

Bienvenue, M. le Président.

When the session resumed after lunch, a new witness was sworn in: Mr. Jean-Louis Mercier, former president of Imperial Tobacco from 1979 to 1993.

Mr. Mercier is a tall man, verging on gaunt with a rich baritone voice and a slow manner of speech.

He is the first witness to speak in French. Although this is a suit filed on behalf of Quebec smokers against an industry predominantly based in Quebec, in a province where the official language of work is French, the proceedings have mostly taken place in English. Witnesses are allowed to testify in the language of their choice, but to date only Mr. Mercier has opted for French.

In response to the typical introductory questions, he gave a brief history of his career. He said he began by selling vegetables during World War II before, at the age of 14, showing films in parish halls. He came to Imperial Tobacco after brief stints in firms where he felt he had few prospects. He referred to chance opportunities when he was asked to trace his progress through ITLs ranks to the office of president -- a subisidary that closed, a boss who got sick, another who was promoted. His education did not include high school graduation (he "had his grade 9"), but did include receiving a certificate in industrial management at McGill after night studies in other areas as well..

There were a few smiles when he described his role at ITL as "president of managing profit planning" (président de gestion de planification des profits). He explained that when he arrived, Imperial Tobacco had not been profitable in comparison with the quantity of cigarettes they sold. He oversaw a plan to improve productivity at all levels.

Under this plan, the company improved its market share. "We had a 40% market share, then raised it to about 60%". His answers to how they did so were similar to Mr. Kalhok's. They made "high quality products that met consumers needs." They did not have influence on the decision to start smoking, but only on the brand smoked.

He allowed that the company had reservations, based on lawyers' views about being involved in certain health research or activity. (As soon as he mentioned the word 'lawyers', Suzanne Cote on behalf of Imperial Tobacco stood up to protest against moving into the area of privileged communication. Justice Riordan informed the witness that he was not obliged to reply to questions about advice from lawyers, although he could if he wanted to.)

Mr. Mercier expanded on his story about lawyers' advice.  He explained that the company had responded to the 1972 Surgeon General's identification of some harmful constituents in tobacco smoke by considering research into how to eliminate those products or to reduce them. "That was when the famous dictum from the lawyers came that if we tried to get rid of the toxic ingredients it would be considered an admission that our products were toxic, even if it wasn't us who called them toxic, but was the U.S.Surgeon General". [Beware - translation on the fly].

Although that project was dropped, he explained, research continued with the analysis of smoke with an eye to what could be done to reduce them. Mr. Trudel pushed for details, and Mr. Mercier drew a line between the research that Imperial had done on eliminating toxins and research on the toxic properties of the substances. "We tried to reduce them. We never tried to find out if they were toxic."

Mr. Trudel asked about the relationship between BAT and Imperial Tobacco. Mr. Mercier insisted at every occasion that Imperial Tobacco was not controlled by BAT. ITL was not a branch operation like other companies like others. "They saw us as an investment." There were no directives from BAT on how manage files, or how to answer criticisms on health issues. Nor, he said, were there any such directives within Imperial.

"Everyone decided for themselves.  My position was that for certain groups of people there was a form of risk to smoke tobacco. For other groups, there wasn't ... The issue is that you can't tell in advance who is at risk and who isn't.  That is the big dilemma."  He said that within ITL there were no talks about informing smokers of health effects because there were warnings on the packages, and even warnings on advertisements.

Before long, Mr. Trudel moved to the issues of document destruction, referred the witness to previous exhibits that had been presented to Mr. Ackman, and introduced new exhibits on the same theme.  Mr. Mercier was not certain that it was his decision to change the document retention policy that was referred to in a letter from Mr. Ackman to Mr. Canner (Exhibit 91). He suggested it might have been a favour done for BAT, ("if you are nice to them, sometimes they are nice back").

He was asked about the genesis of the document retenton policy change -- and whether it had anything to do with litigation risks that might have became apparent as a result of the production of documents during the trial of the Tobacco Products Control Act. He thought not, but was given a copy of Exhibit 70 and asked to review it for further questions on document destruction tomorrow.

While Mr. Mercier was asked to leave the court room, the Judge considered the request of Mr. Trudel that this witness, like Mr. Descoteaux and Mr. Ackman, should be considered to be favourable to the industry's position. He ruled that the witness was skating around key questions, and that he would permit the plaintiffs to ask suggestive questions.

Mr. Trudel then turned to Mr. Mercier's role in the Canadian Tobacco Manufacturers Council, and the role of the CTMC in determining policies on smoking and health. Mr. Mercier was chair of the CTMC, a task he described as thankless.  "No one wanted the job."  It was difficult to manage the relationships between the four company heads (this was before the merger of Rothmans with Benson and Hedges), he explained.  He said they hired a staff president because doing so made negotiations between the companies easier, and he spoke glowingly of Jacques Lariviere who held the post of spokesperson during some of that time).

It wasn't the CTMC that decided to challenge C-51, Mr. Mercier explained, but the decisions of indivdiual companies, especially ITL.  They were concerned about the way the advertising ban affected their ability to market trademarks.  "No one goes to a corner store and says 'give me a package of cigarettes,'" he said. "They all say 'give me a package of Peter Jackson,'" or another brand.

Mr. Trudel referred the witness to communications guidance that the CTMC had prepared regarding health effects (Exhibit not yet available), but Mr. Mercier doubted that he had read it. The discussion returned to Imperial's views of health effects and whether the company or the witness had agreed with the health warnings proposed by the new legislation. "Smoking reduces life expectancy,” “Smoking is the major cause of lung disease,” "Smoking is a major cause of heart disease," "Smoking during pregnancy can harm the baby.”

Mr. Mercier returns to testify tomorrow, Thursday, April 19.  Although the trial will not sit on Friday, a related proceeding will take place in the Quebec Court of Appeal, as the federal government seeks leave to appeal Justice Riordan's February ruling to reject their motion to be dismissed from the case.

Stay tuned for a review in the coming days of the document hits of this week.  

Day 17 - Questions, Answers, Pleadings, Decisions

The one-time vice president of marketing for Imperial Tobacco, Anthony Kalhok, was again on the stand when the trial of the Montreal tobacco class actions resumed this Tuesday morning.

In answer to Justice Riordan's jovial "how are you, sir?" as the session began, Mr. Kalhok allowed that he felt "perked up" by a weekend of physical exercise.

It would have taken a stalwart temperament to maintain any feeling of perkiness over the next few hours, as plaintiff lawyer Bruce Johnston took the witness through a series of focused and relentless questions about the marketing strategies of Imperial Tobacco during his tenure there.

Young smokers - a major opportunity group

Of the day's rich testimony, some of the most memorable sections involved the company's approach to young smokers. 

Mr. Johnston pushed Mr. Kalhok to explain the constraints under which his department operated with respect to advertising that reached young people. As happened last week, responses were usually framed around a business analysis.

"You set up a context that is the opposite to the context we worked," Mr. Kalhok explained when asked why they did not market to youth. "We did not consciously not target to people under 18, we consciously targeted at people over 18." Why not target smokers?  Well, "there is only so much you can do in an ad."

Mr. Kalhok passed over several opportunities to reveal any qualms Imperial Tobacco might have had about youth smoking.

Mr. Johnston: Aside from the voluntary code was there anything else that determined the decision or policy of imperial tobacco not to market to starters who were of legal age?

Mr. Kalhok:  No.

Mr. Johnston:  The risks or possible addiction, that was not a factor?

Mr. Kalhok:  No.

The second theme to which Mr. Johnston returned was the role of the marketing department in addressing smokers' concerns about their health and the marketing of some cigarettes are safer.

The witness began to look a little less 'perked up' when Mr. Johnston introduced a 1971 marketing plan that had been authored by Mr. Kalhok (Exhibit 151, not yet available).  Mr. Kalhok was given a moment to read over the anlaysis he had provided some 40 years ago

Young smokers represent the major opportunity group for the cigarette industry, we should therefore determine their attitude to smoking and health and how this might change over time.

Mr. Kalhok looked up from the page to his questioner and ruefully admitted that if the document had been brought out earlier, "you wouldn’t have had to ask me about my personal views."

At this point, discussion returned to the first marketing studies conducted by Imperial Tobacco on teenagers. The Kwechansky "Project 16" was cited in other tobacco trials (including the trial of the federal Tobacco Products Control Act and the U.S. federal RICO suit), but this is the first time that the man who had responsibility for the study had been asked to testify on it.

Mr. Johnston read out extracts from the study, repeatedly asking if these had caused concern for the company. Not once did Mr. Kalhok acknowledge any disquiet.

Mr. Johnston:  "Serious efforts to learn to smoke occur between ages 12 and 13 in most cases.”  Was that new information for ITL at that time?

Mr. Kalhok:  Yes

Mr. Johnson:  Did it cause concern?

Mr. Kalhok:  You have to remember these are the claimed behaviours of the 16 and 17 year olds.  It would not have statistical validity.  We were, um, surprised.

Mr. Johnston:  "Like adult smokers, teenage smokers find it very hard to quit, even if they want to do so of their own accord.”  Did that cause concern?

Mr. Kalhok:  No more than coffee, coke, or whatever else. We admit that once you enjoy smoking you like to continue smoking.

Mr. Johnston:  Was it considered at imperial tobacco at that time, that smokers were able to give imperial tobacco or any manufacture an informed adult consent?

Mr. Kalhok:  I don’t understand the question.

Mr. Johnston: Do you understand the concept of informed consent?

Mr. Kalhok:  Probably not.

Mr. Johnston:  Did that information have an influence in a marketing strategy in the direction of exercising extra caution?

Mr. Kalhok. Not really.  As I said, it was not new information.

Mr. Johnson.  "The young do not temper their actions with worries about future consequences. This is partly because they don't really understand them yet, and because to them the future means next week, next month or at most next year. It does not mean in fifty years, or even in five."  Did this information prompt anyone to prompt how this misapprehension could be corrected?

Mr. Kalhok: If I understood your question correctly, we wouldn't tread into that territory to correct that misapprehension between the timing of the pleasure and the timing of a potential risk. The facts were they were far apart. And they perceived them as far apart. There was nothing to correct.

Maintaining the social acceptability of smoking

Mr. Johnston also revisited the issue of  Imperial Tobacco's marketing strategies to respond to health concerns of smoking.  He again questioned Mr. Kalhok on (Exhibit 116) which minuted an observation in 1976 of the marketing, research and public relations staff of the company:

In our normal marketing activities, we are constantly aware of the smoking and health issue. Some of our campaigns are very effective in reinforcing the smoker's choice. The image campaigns being currently run for duMaurier, Peter Jackson and Player's Filter, help to convey three of the basic reasons for smoking. Those reasons are, respectively, social acceptance, personal independence, and the pleasure of smoking.


He introduced minutes of a similar meeting the year before (Exhibit 153), a policy statement by Canadian tobacco companies on the question of tar and other smoke constituents (Exhibit 154- under reserve, but also available on the Legacy site), a memo noting changes to that agreement (Exhibit 155), and a proposed new agreement (Exhibit 156, 156a) where the Canadian companies agree to not "expand on or exploit" health concerns, to permit each other to use the words tar and nicotine, but not to use any  'scary' words like carbon monoxide or gaseous phase.

Other documents introduced but not  yet available were a marketing plan for a new Player's cigarette (Project Pel, Exhibit 157R), a review of the tobacco industry (Exhibit 159).

By mid afternoon, the plaintiff's wound up their examination of Mr. Kalhok.  They took him to a document on which Mr. Descoteaux had been questioned in the opening days of the trial (Exhibit 11), and asked him to identify his handwritten note to his colleague.  "Much of the satisfaction (of smoking) is the effects of nicotine," he had scrawled across Mr. Descoteaux's suggestion that the company should develop cigarettes that would provide the same satisfaction without "enslaving" consumers.  "Would you pay $12 for a 40 oz  of gin if it didn't contain alcohol?"

Judge Riordan's calls. 

1. Smokers are not also passive smokers

Justice Brian Riordan was called on to make two decisions about evidence.

The first was in reply to an objection by the tobacco companies to a question about the company's views on second hand smoke. "Bringing second hand smoke into the picture would be a fundamental change to the nature of the case" said Imperial's lawyer, Craig Lockwood. Despite Bruce Johnston's protest that smokers are also affected by second hand smoke, and that the industry's approach to the science on second hand smoke was relevant to their denial of other science, Justice Riordan shut down the line of questions. "The issue is not relevant to the  (class action) groups."

2. Non-appearing documents about document destruction.

Earlier in the month a press release regarding document destruction (Exhibit 57) had not been provided to the plaintiffs as part of the established exchange of documents. This had raised questions about the consistency of the defendant's document production with an earlier ruling of Justice Riordan.

After establishing that there were other documents in the same category (related to implementation of the document retention policy), Justice Riordan clarified "if there is ambivalence in my previous judgement that is my fault, but that doesn't change the fact that the information is relevant, and it has to be provided.  And it has to be provided in a timely way with witnesses." He called for documents related to "document destruction between 1985 and 1995 and referred to subsequently."

Ms. Glendinning questioned the time-frame of the document net ("AFTER the lawsuit has commenced!?"), but promised to provide details in the coming days about the number of new documents to be produced.

Justice Riordan also clarified that Imperial Tobacco was to give priority in its internal review of documents to those that are intended to be provided to the plaintiffs in the main action, and that delays in providing documents to the plaintiffs that resulted from assigning personnel to documents in the action-in-warranty (the federal government involvement) were not acceptable.

Back to the croquet court

At the end of the day, discussion was resumed on the industry's request to disqualify three of the federal government's four proposed expert witnesses.  Mr. Regnier, speaking on behalf of the federal government, resumed his submission from the previous day and provided a detailed account of where Dr. Farone's testimony was linked to the action in warranty.

Andre Lespérance presented the views of the plaintiffs, and their agreement with the position of the federal government's counsel that the court was operating with common evidence.  The main action and the action in warranty were woven together, he explained, and the division of the cases in examining or cross examining witnesses would be unworkable.  The expert witnesses were pertinent to both cases, he said, because the cases were "mirrors of one another."

In her reply to the opposition to their motion to dismiss the witnesses, Suzanne Coté replied that she disagreed with the view that the two actions were being tried with common evidence. The fact that the cases were being heard and judged concurrently did not mean that they were working on the basis of a signle proof.

She went further to question the relationship of the federal government to the plaintiff's case. "The federal government could contest the principal demand," she pointed out.  (Was she remembering with nostalgia when the federal government had sided with the tobacco companies in opposing certification of class actions on tobacco in British Columbia and Newfoundland after they had been sersved with third party notices?).

Simon Potter apologized for not having provided the whole story to the court about the eventual agreement reached by the tobacco companies and the federal government to allow Dr. Burns to testify in the Tobacco Products Control Act case, even after Justice Chabot had disqualified him.  He did not back down from other positions taken the day before, and repeated his concerns that the expert witnesses were provided too late in the day to be fair to the defendants.

The last word went to Mr. Jean Leclerc (on behalf of the federal government), who urged the judge to read again the Burns report, and to consider that it could not be severed but should be read as a whole.

Tomorrow morning, Mr. Kalhok returns to face cross examination by his former employer's attorneys, and possibly by lawyers representing the federal government.  In the afternoon, the former president and chairman of Imperial Tobacco, Mr. Jean Louis Mercier, will be called to testify.

Week 4: Documents of the Week

During the examination of Anthony Kalhok, who was vice-president of marketing for Imperial Tobacco in the 1970s, the following sets of documents were introduced as evidence.

Consumer Research on Canadian Smokers

Exhibit 145 
May 7, 1971
Fall 1970 - 8M French Quebec vs. rest of Canada
Results of the regular survey conducted by Canadian Facts on behalf of Imperial Tobacco reporting on the greater likelihood of Quebecers to smoke, and the different patterns of smoking according to education, sex and age between Quebec and elsewhere in Canada.

Exhibit 144:
Date: August 26, 1971
CMA - August Highlights
The polling study looked at public awareness of the brand association of Impeiral brands with sonsored activitie (ballet, golf and autoracing).

Exhibit 139A
Date: August 1975
Exact age started smoking on a regular basis.  CMA
Results of Imperial Tobacco's first analysis of youth smoking behaviours.

Exhibit 139
Date: September 1975
Smokers' starting ageMemo describing results of Exhibit 139A data.

Exhibit 127
March 1977
1977 - transparencies
Polling data showing trends since 1971 on smokers' beliefs about harms of smoking, intentions to quit and successful quitting.

Exhibit 130
June 1977
1977 Segmentation of the French and English Speaking Canadian cigarette markets.
A 161 page report on a study conducted by Market Facts by Imperial Tobacco that used psychographics to identify potential market opportunities for new brands.

Exhibit 142
September 1977
Project 16
Proposal by Kwechansky for focus group study on 16 and 17 year olds to understand their smoking behaviour.

Exhibit 142b
October 1977
Project 16 - English Youth111 page report on results of focus group studies on youth smoking behaviour conducted by Kwechansky Research.

Exhibit 143
April 1978
Smoking and Health. Low and high health concerned smokers.
Further analysis of the data from Exhibit 130, looking at the differences between smokers on the basis of their health concerns.

Product Development

Exhibit 136
Date: June 1972
Project "Gatwick"

Exhibit 138
Date: September 1972
Project Gatwick

A report on the development of a new Players brand that would respond to concerns about smoking and health by introducing a lower T&N cigarette which maintains "smoking satisfaction".  Extensive discussion about the constraints on marketing a "safer" cigarette.

Corporate Policy

Exhibit 113
March 1976
The effect of restrictions on current marketing and marketing in the futureA long analysis prepared by Tony Kalhok and PL Short for consideration at a top-level global meeting of BAT directors looking at the need to refocus marketing communication to provide a more supportive social atmosphere for smokers.

Exhibit 115
May 1976
A memo from PL Short proposing new lines of research and communications activities based on Exhibit 113.

Exhibit 116
May 1976
Minutes at an ITL meeting (among marketing, research, and public relations personnel) at which it was agreed to set up a task force to deal with a change in company policies in communicating smoking and health and adopting measures to increase social acceptability of smoking.

Exhibit 117
May 1976
Minutes of a meeting at ITL where it the paepr (Exhibit 113) was discussed and a number of factors describing the smoking environment agreed to. Recommendations agreed to included to "plan and implement a concerted program to counter adverse publicity."

Exhibit 118
May 1976
Smoking and Health - Some probable questions and possible answers
Talking points on questions involving health consequences of smoking.

Exhibit 120
July 1976
Visit to Southampton R&D by Messrs. Kalhok and ClarkTrip notes from a visit by ITL marketers to BAT's research unit, during which studies smoker behaviour were reveiwed, including compensation behaviours and  ways of designing cigarettes to give more nicotine.

Exhibit 121
July 1976
Cigarettes of the FutureMemo from ITL's director of research to Mr. Kalhok to which a scientific report (by MAH Russell) on smoker compensation was attached.

Exhibit 123
August 1976
Marketing in the 80's: A review of strategies related to smoking and health
Planning notes for a marketing meeting (at Chelwood) which followed on from the meeting at which Exhibit 113 was discussed and agreed to

Exhibit 122
October 1976
Additional notes at Chelwood
Report on the meeting at Chelwood, noting conclusions on smoker compensation ("they puff harder, longer or more frequently"), smokers' need for nicotine, nicotine dependence and "addictive smokers".

Exhibit 124A
October 1976
Minutes concerning trip to Chelwood.
Report on decisions taken and recommendations made by marketers at the Chelwood 197 conference, with a focus on increased communications on smoking and health. These included recommendations to "identify the benefits fo smokign and to exploit these, both as a counter to anti-smoking influences and specifically as an aid in promoting smoking, if possible."

Exhibit 125A
February 1977
Smoking & Health: The Position of Imperial Tobacco
(Proosed) policy guidelines for ITL communications.

Exhibit 125B
February 1977
Position of Imperial Tobacco - An ExplanationAnnotation and explanation of policy guidelines in Exhibit 125A

Exhibit 125
March 1977
S&H - ITL Position Paper February (5R).
Letter from ITL scientist RM Gibb to colleague recommending a change in the position of the company outlinehd in Exhibit 125A in order to "have credibility in the eyes of reasonable, informed people."

Exhibit 128
March 1977
Initiating a proposed action plan (ITL S&H Position)Proposal that work to "counter anti-smoking activities" be conducted in-house at ITL, instead of delegated to the CTMC, including a detailed action plan.

Exhibit 133
April 1978
Smoking and Health - basic assumptionsAnthony Kalhok's opinion on the assumptions posited by BAT that, in his view, were most significant from a business perspective. "We will have to find ways and means to stall the implementaiton of the above or counteract their effects."

To access trial documents linked to this site:

The documents are on the web-site maintained by the Plaintiff's lawyers. To access them, it is necessary to gain entry to the web-site. Fortunately, this is easy to do.

Step 1: Click on: https://tobacco.asp.visard.ca

Step 2: Click on the blue bar on the splash-page "Acces direct a l'information/direct access to information" You will then be taken to the document data base.

Step 3: Return to this blog - and click on any links.

Day 15 - “We weren’t people with horns on our heads.”

The third day of Anthony Kalhok’s testimony was scheduled to be his last appearance at the Montreal tobacco trials, but it became apparent by mid-day that the pace of questions and answers would bring this witness also into “overtime”.

As she had throughout the week, Mr. Kalhok's wife, Barbara Kalhok, sat at the back of the courtroom. Other family members were present, at least in the testimony.  Tony Kalhok explained that (although he grew up on a tobacco farm) his mother warned him that smoking would stunt his growth, and laughed at his own lack of height. He also revealed that when he spoke of pressure on smokers from children taping closed their parents cigarette package, he spoke of his own daughter's response to his smoking.

The answers we seek:  A tobacco industry film

Mr. André Lespérance started his examination by picking up where he left the day before - trying to put on the record a film giving an industry perspective on smoking issues. This film, "The answers we seek" had been the subject of a discussion between Mr. Kalhok, when he was Vice President of Marketing for Imperial Tobacco and his colleagues in the research and internal public relations departments.  

The fact that it was produced by the U.S. Tobacco Institute was only one of the concerns of the industry lawyers who objected to the film being allowed into evidence.

As before, Mr. Kalhok was asked to step outside while the lawyers wrangled. He was invited back in after Justice Riordan decided that the film would be allowed as evidence if Mr. Kalhok could identify it as a film he had seen so many decades go – which he did. This film can be viewed here* at and transcript is available courtesy of the Legacy document site.

The discussion between Mr. Kalhok and other Imperial Tobacco department heads over the merits of showing this industry film to their employees revealed the challenges of communicating a company position on smoking and health. In response to Mr. Kalhok's suggestion (Exhibit 148a) that before employees were shown the film they should be provided with “a brief explanation of the 'smoking & health' issue” and “our company's position on this subject,” the head of science cautioned (Exhibit 148) that the film:

“requires us to think through for ourselves what we really believe to be true about S&H, and to communicate this, as well as what our posture as individual people and as a Company ought to be, under the circumstances. This is not an easy task - it boils down to rationalizing both a personal and Company position in the face of difficult circumstances.”

Mr. Lespérance suspended his questions on these issues until a further document became available.  

The answers we seek:  A lawyers’ task

When Mr. Johnston took up the questioning mid-morning, the tone and pace of questions appeared harder and faster -- and the answers appeared more defensive and guarded.  

Unlike the first witnesses, Mr. Kalhok's memory rarely failed him or resulted in questions going unanswered. This did not mean, however, that the answers given actually responded to the questions asked.  

Mr. Johnston's questions mostly centred on documents introduced over the first two days of Mr. Kalhok's appearance. He returned to the themes of Mr. Kalhok's view and the view of Imperial Tobacco on addiction, the health consequences of smoking, the company's relationship to its clients and the uptake of smoking by young people.

It's not addictive if you can quit

Why, he asked, had Mr. Kalhok quoted a scientific definition on addiction instead of giving his personal opinion when he was asked about the topic earlier in the week.  Mr. Kalhok chose his words carefully. “My personal view, because I was a smoker, I said it was habit forming.”

Mr. Johnston referred back to documents that Mr. Kalhok had received or written where the word and concept of addiction had been used. He asked Mr. Kalhok whether it concerned him that a reputable journal like the British Medical Journal (Exhibit 121) was publishing articles that said smoking was addictive. 

“Personally no,” was the reply “I had a personal view and I was satisfied with it.”

Mr. Johnston pressed him to say whether he would have been open to change if he received from a credible source. “Certainly,” Mr. Kalhok answered. “If Dr. Morrison (of Health and Welfare Canada) said ‘Gee – what I told you is no longer our position, here is a new one.”

Mr. Kalhok spoke as though Health Canada had been very influential in Imperial Tobacco’s communications activities.  “There was an understanding,” he said “between ourselves and the government in terms of how we would communicate.”

An agreement with Health Canada not to talk about health issues 

Mr. Johnston explored the understanding with Health Canada and Mr. Kalhok explained that while he had never seen any agreement, he had been informed that the companies “would not enter into a discussion about health that would frustrate anything that the government was doing.” 

Mr. Johnston: “Are you saying that this prevented you putting an insert into the pack and informing smokers that this caused lung cancer?”

Mr. Kalhok:  “My answer, I guess, would be no. But also that it would be irrelevant or an extra expense because we already had a warning on the outside of the package.”

Mr. Johnston: “Was this …sufficient warning of probability of severity of disease?:

Mr. Kalhok: “I did not participate in any discussions on this. I don’t know.”

Mr. Johnston: “Is it the voluntary code that prevented you from advising customers or was it something else?”

Mr. Kalhok: “My mandate was to increase market share. And that’s where my concentration was.”

(For the first weeks of the trial, the lawyer for the government of Canada, Mr. Regnier, sat quietly. When questions were raised yesterday about a possible agreement between government and industry, he stood to say that he would make no objection to the question being asked, but that their view was that the testimony had no “probative value”. Today he objected (unsuccessfully) to such questions being asked. )

Designing products to respond to health concerns. 

Mr. Johnston continued to gave Mr. Kalhok opportunities to acknowledge the health effects of the cigarettes he was marketing on his customers. In sidestepping each of these occasions, Mr. Kalhok looked at times genuinely perplexed at the implication that he or the company could have acted differently.

Mr. Johnston: “In your marketing efforts were you governed by a concern for the health of your customers?”

Mr. Kalhok:  “I guess so.  Since they expressed it as a concern and therefore we would respond to that in a way that made some sense. I think the publication by the government of the tar and nicotine numbers and their commentaries around that created a framework around which you could design products.”

Mr. Johnston:  “The framework around which you could design products… are you seeking to exploit the situation?”

Mr. Kalhok:  “We were responding to the consumers’ expressed desires and their knowledge.  They liked to have a cigarette that was a satisfying as the one they had but had lower tar and nicotine.”

Mr. Johnston:  “Was there a genuine concern for the health of the customers, or just for the market?”

Mr. Kalhok: “There was a general concern.  We weren’t people with horns on our heads. “

Mr. Johnston: “Was it a matter of concern that the product was reportedly killing thousands of people?”

Mr. Kalhok:  “Certainly as a business equation – ff the customer perceived that there was a concern to themselves one of their options was to no longer do it. The impact on the business was that there was less product to sell.”

Mr. Johnston:  “This is how you expressed your concern?”

Mr. Kalhok:  “We were not in a position at least from a marketing point of view to go out and express health risks in a way that was more effectively that what the government was doing.”

Mr. Johnston:  “Why could you not do that?”

Mr. Kalhok:  “We did not have the resource or the expertise to do that.”

Designing products to respond to health concerns. 

The gap between a business approach and a health approach was revealed in another exchange, when Mr. Johnston asked about Mr. Kalhok’s report to senior management about young people smoking (Exhibit 113): “Lest we paint an exaggerated, pessimistic view of the future prospects, we must quickly add that, despite all this, currently we have a stable incidence of smoking. Quitting rates are not increasing, and young people are starting in the same ratios as previously," Mr. Kalhok had written. 

Bruce Johston: “As a business man and as a marketer, was it good news that young people were smoking at the same rate?”

Anthony Kalhok: “From a business point of view it was fine.”

Bruce Johnston: “Was it good news?"

Anthony Kalhok:  “It was a market reality.”

Bruce Johnston:  “Was it good news?”

Anthony Kalhok  “If you are trying to maintain your volume, yes.”

No rest for the former executive

At the end of the day, Justice Riordan asked the lawyers how much more time was required of this witness. Both plaintiff's lawyers said they had more questions to ask, and cross examination by Imperial Tobacco lawyers and the federal government lawyers is also expected.

Mr. Kalhok will return on Tuesday, April 17th.  On Monday April 16th, the industry will be trying to persuade Justice Riordan to reject the expert testimony of three federal government expert witnesses.

* Thanks to a kind reader for this link!