Day 80: Mr. Massicotte's legal advice

See note on accessing documents at the end of this post.

It was Mr. Massicotte's second and final day of testimony at the trial of the Quebec tobacco class action suits. Yesterday, the lawyer who worked at RJR-Macdonald from 1977-1980 had been questioned about his role in the industry's international system to manage public issues. Today he was asked about his record as legal agent at the company.

The hearing today was unusually almost entirely in French. (Fair warning - translation was done on the fly).

Interpreting the voluntary code

The trial has heard much about the voluntary code that the industry developed to self-regulate advertising. One of Mr. Massicotte's jobs at RJR-Macdonald was to monitor the code and to advise on its application by his and other companies. (The version of the code in place while Mr. Massocotte worked at RJR-Macdonald is available at Exhibit  40005 K-1975).

One of the provisions of the code (article 8) was that "No advertising will state or imply that smoking the brand advertised promotes physical health or that smoking a particular brand is better for health than smoking any other brand of cigarettes...." Today Mr. Massicotte was asked to explain whether he thought describing a cigarette as "mildest" would have been contrary to the code. "I don't think so," he said "but there may have been other views."

André Lespérance asked if the statement "absolutely nothing milder" didn't contain an implicit health claim. "I think it could be interpreted in different ways," Mr. Massicotte replied and said the company was trying to move smokers to lower tar cigarettes and "at the same time not make health claims. It is a problem." When pressed whether the consumer might have thought such a brand was safer, he "could not say."

Consumer beliefs about low tar and "safer"

Not allowed by CTMC
Exhibit 896

Earlier this week, Mr. Ron Bulmer had testified about the marketing by Benson and Hedges of its low-tar brand, Viscount and the dispute between his company and Imperial Tobacco over the use of the word "mildest" in advertising.

Mr. Massicotte had been copied on a telex that shared the resolution of this issue. The companies had agreed end using the "mildest," "milder" and "check the numbers" claims. The CTMC noted that this would "remove a serious potential hazzard to the industry as well as to the two companies involved." (Exhibit 969).

Within two months, however, Mr. Massicotte's firm had launched its own controversial campaign for a low-tar brand. He was involved in defending the campaign against complaints lodged with Health Canada and the Consumer and Corporate Affairs branch of the federal government. In an unapologetic letter, Mr. Massicotte wrote that the ad was "not intended to address the question of whether one should or should not smoke." (Exhibit 969A)

Allowed
Exhibit 969 D

Questioned on the letter some 30 years later Mr. Massicotte tried to dodge answering whether or not these ads were communicating that smoking low tar cigarettes was safer. Even after Justice Riordan put his food down and tried to force answers, he would not interpret the ad copy against the criteria of the code. "You are looking for an interpretation that marketers would know. I am not in marketing, and I am trying to give you the answers that I would know. If the smokers thought it was safer then there is nothing I can say - it was their belief." 

Nor would he distance himself from a draft he wrote for his president's signature that lower tar cigarettes were not communicated to smokers as being less harmful, but were marketed as not demanding a "sacrifice 
in flavour." (Exhibit 969E - see also Exhibits 969D, 969C, 969B).


Lawyers influencing science - no mention of 'dependency' please. 

Evidence today suggests that Mr. Massicotte added his own thumbprint to the history of tobacco industry lawyers' engagement with scientific research by the companies.

Mr. Lespérance produced a memo written from (now deceased) RJR-Macdonald scientist Derek Crawford regarding proposed grants from the CTMC to medical researchers. In addition to further showing the influence of the parent companies on local decisions, the memo contains a tantalizing reference to "re-wording" of a proposal from Dr. Knott. (Exhibit 970)

I believe I heard Mr. Massicotte say that the rewording in question was the removal of any reference to dependency - but at that point Mr. Francois Grondin, lawyer for JTI-Macdonald, was on his feet claiming that this line of questioning trespassed on solicitor-client privilege.

In a cordial but resolute manner, Mr. Lespérance and Mr. Grondin offered differing views on how to proceed. Mr. Lespérance said he had identified three documents from the Legacy that gave further insight into this episode, but both lawyers agreed that the issue of solicitor client privilege at this trial might be influenced by a Court of Appeal review of a May 17 ruling of Justice Riordan regarding privilege in this case. (The Court of Appeal hearing is scheduled for December 10).

After a break (during which an agreement seemed to have been reached to put the testimony under reserve until the Court of Appeal has ruled) Mr. Lespérance was able to ask Mr. Massicotte to confirm whether Mr. Knott has used the term "dependency" in his initial application. "He said he did not believe that smoking caused dependency - in accordance with the scientific opinion of the time," replied Mr. Massicotte. "We didn't ask him to do anything, he volunteered to remove the words."  (Later the witness revealed that he continues to share the view that addiction is a term that should be reserved for "hard drug users" who "can't control their actions" and "need to go to rehab clinics.")

Duty to warn

The morning was not yet over before Mr. Lespérance finished his questions and turned the examination over to his colleague, Mr. Philippe Trudel, who focused on the company's view of its responsibility to warn customers of the harms caused by smoking.

"Was it your view that the (adult) decision should be made on the full knowledge of risks?"
"Yes, but the public was fully aware."

"Did the company think that smokers should know all of the risks or just a few?"
"The question is specious - the public knew there were risks. If you add one more risk it doesn't really change things." ...

"Is knowledge of the risks an important basis for a smoker to make informed consent?"
"I would say yes, but the consumer at that time was well informed of the majority of the risks associated with smoking." 

Mr. Trudel was unable to get Mr. Massicotte to provide a clear answer about the magnitude of or relative risk. Only when Justice Riordan intervened and asked if the company had a policy with respect to warning about relative risk did Mr. Massicotte say "No."

And as to whether adolescents should be informed of the risks before starting to smoke, Mr. Massicotte said simply "we did not market to kids."

The Cross Examination

The cross examination of this witness was quick and painless. Mr. Maurice Regnier established that Mr. Massicotte had not been involved in the negotiation of the voluntary code at any time. Mr. Francois Grondin established that while working for his client Mr. Massicotte had spent only a fraction of his working day on the issues that were before the court. Ms. Suzanne Coté established that when he was speaking about Imperial Tobacco's involvement with ICOSI it had been the UK company, and not her client, Imperial Tobacco Canada Ltd.

One down - Seven to go?

2,804 days have passed since Justice Jasmin authorized these class actions with a ruling that set out 8 common questions to be answered at trial. The first of these was the question "Did the defendants manufacture, market and distribute a dangerous product, one that is hazardous to the health of consumers?"

With a few minutes left on the clock before lunch time, Justice Riordan closed his computer, capped his pen and glanced around the room. He said that he had heard the testimony of two current company presidents, and even though a third was yet to testify, it sounded to him like there may have been an admission on that first question. The companies did admit that their products were harmful to health.

Doug Mitchell, one of the remaining veterans on the case, stood quickly. "If it tracks the (civil) code," he said, "then there isn't an admission. The question as framed must be given a legal context. .. It was not meant to be a simple factual question." He continue in this way, but Justice Riordan repeated - "It seems to me that we have an admission."

The Road Ahead

The first part of the afternoon sounded like a case management discussion, with progress on discussions on some lingering issues (access to financial statements, access to CTMC documents, access to voluminous CMA documents) and some potentially new ones (Mr. Lespérance hinted that he might be requesting a closed-door meeting on an undisclosed topic).

Simon Potter once advised tobacco litigators to "never give up." That advice seems to have been taken by his colleagues on this trial who will try to re-open the issue of parliamentary privilege. A motion to this effect was to be circulated among the parties on Friday.

Some of these issues will be discussed more formally when the trial resumes on November 12th. On the first days of that week the discussion about the admissability of Legacy documents will continue (without the presence of any witness from that document repository).

For the remainder of Thursday, Ms. Gabrielle Gagné continued the task of entering historic "orphan" documents into the trial record. By the end of the day her pile had dwindled away. Highlights from some of these documents will be posted next week.

The trial resumes Monday, November 12th. 

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 79: Another lawyer in the court

See note on accessing documents at the end of this post.

No one was shelling out Halloween candies in Montreal's Palais de Justice, but nonetheless treats were in store today for those following developments at the trial of the Quebec tobacco class action suits.

Yesterday, Justice Riordan had elicited an explanation from a former executive with Rothmans, Benson and Hedges (Mr. John Broen) that the Canadian companies complied with the position of the multinational companies on sensitive issue, but "were never actually told what to say."

The documents introduced through today's witness, Mr. Guy-Paul Massicotte, shed light on how that worked. They describe the policy and public relations network that was developed by the multinational industry to generate a common industry position on key issues and to keep everyone on the same page. That network relied on each country having a point-person to act as a conduit of information.

For the three years he worked at RJR-Macdonald (from 1977 to 1980), Mr. Massicotte was that person.

Mr. Massicotte - a witness not like the others

Although he does not look it, Guy-Paul Massicotte at 72 was likely the oldest of the 22 lawyers in the courtroom today. He is now a 'retired' lawyer, but continues to do work for the steel manufacturer, IVACO, where he became corporate counsel after he left RJR-Macdonald in 1980.

The polite tone among plaintiff lawyer André Lespérance, witness Guy-Paul Massicotte and JTI-defense lawyer Francois Grondin and the fact that, unusually, all the lawyers were speaking in their mother tongue may have contributed to the efficiency with which documents were put into evidence.

Mr. Massicotte was invited to comment on many of these documents, at which times he seemed sympathetic to the tobacco industry. He certainly did not distance himself from his work at RJR-Macdonald and the CTMC over 30 years ago. He echoed the view of many witnesses at this trial that the tobacco business was a 'legal business' operating with government approval. He still uses the word  "we" when referring to the tobacco industry. He came across as a sincere and credible witness, albeit not one with a fine memory for details 30 years old.

The ICOSI landscape

ICOSI has only been a minor detail in the trial to date, and usually it has taken several weeks and witnesses to so clearly present a storyline of what happened within the industry. To have the new story of ICOSI so compactly told today was a pleasure to watch.  (An alternative telling can be found in the article "Tobacco industry issues management organizations: Creating a global corporate network to undermine public health")

Mr. Massicotte began working for RJR-Macdonald just at the time that ICOSI was in development.

Even before he began with the company, he was identified as the man who would take care of Canada for the new global network. "Guy-Paul Massicotte, newly hired legal counsel for Macdonald Tobacco Inc., will assume responsibility for smoking and health when he comes on board early this fall." (Exhibit 580). His responsibility among others was "To establish an early warning system on scientific, legislative, political and similar matters relating to smoking and health." (Exhibit 580B).

It was not long before Mr. Massicotte was providing information up the line on the position of the Canadian companies, and on the process within the Canadian industry to sense early warnings. (Exhibit 580A  580C  958,  964). He also funnelled information from ICOSI and the Tobacco Institute down into Canadia, using it for example in his attempts to pre-empt tobacco regulations in Quebec. (Exhibit 964, 964A, 964B, 964C, 965)

Although this project is still not very high on the Government list of priorities, we feel that it is imperative that we act quickly so as to attempt to remove the most harmful proposals at an early stage before the Government becomes committed to a final policy proposal. As you know, I will be going to Quebec City tomorrow with a representative of Imperial Tobacco to present our own material, (including the ICOSI position paper on public smoking which has been translated into French) for their use and reflection prior to issuing a revised paper. 

While at RJR-Macdonald, Mr. Massicotte participated in the development of CTMC strategies to block legislation (Exhibit 966  966A). He tracked the successes and failures of the industry in blocking smoking restrictions against the interventions that had been made. (Exhibit 967, 967A, 967B)

Social Acceptability

One of the recurrent issues in the documents presented to Mr. Massicotte was the issue of social acceptability of smoking. 

In 1980, Mr. Massicotte had written that "social acceptability of smoking" was "of utmost importance to the industry.”  (Exhibit 966A - not yet available) Only when pressed by Justice Riordan to state whether there was a relationship between social acceptability and total sales did he concede "I guess you could say so." 

Social acceptability was not merely about smoking bans (Mr. Massicotte was most likely to volunteer those as an example of acceptability issues). ICOSI also saw it linked to warnings, advertising and influencing social and political climate. "We should influence as far as proper medical and official opinion against incautious imposition of constraints and unnecessary restrictions on smoking. To do this it may be necessary to talk to medical authorities and government agencies." (Exhibit 968B)

RJReynolds Industries (the ultimate parent company of RJR-Macdonald) was very concerned about social acceptability, and its vice president, Denis Durden, chaired the ICOSI committee on the topic. (Exhibit 968D, 968I, 968M). This group assessed the pressures on smokers in different countries, finding Canada friendlier to tobacco than Sweden, the UK or the USA. (Exhibit 968C).

The SAWP called for far reaching countermeasures, and recommending branching out from focusing only on governments to trying to influence society more generally. "The Working Party has found only a few campaigns that are systematically designed to influence the general public, opinion leaders and senior bureaucrats who exert such great influence on contemporary social acceptability issues."  (Exhibit 968C)

Documents tabled today show that Mr. Massicotte received materials on social acceptability that were for his "appropriate distribution" in Canada.  He also received training and exchanged information at meetings in the United States and Switzerland. (Exhibit 968G, 968H, 968J, 968K, 968, 968A, 968L, 968E, 968F)

Mr. Massicotte is expected to finish his testimony tomorrow. The trial will not sit next week during its regularly scheduled break.

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.