Report From Philip Morris Counsel to Philip Morris Counsel Regarding Meeting on Addiction
This privileged, confidential "attorney work product" document from the Philip Morris collection is from Shook, Hardy and Bacon, the law firm that assists the tobacco industry with ingredients-related issues. It describes the legal strategy to be employed by the industry against plaintiffs who pursue claims of physical harm related to ingredients in cigarettes.
Strategy #1 is to avoid the ingredients issue completely at all costs, and instead
- "...keep the focus of the trial on the personal choices and responsibility of the plaintiff and away from the conduct of the industry."
If the defendant companies cannot succeed in blaming the victim for use of their products, and ingredients do become an issue in the trial, the next strategy is to:
- "...make every effort to convince the jury that [ingredients] are a 'side show," in that the plaintiff was aware of the risk...chose to smoke, was not concerned with the source of the risk, and would have smoked even if he had known the specific flavorings and other ingredients added to the cigarettes."
The document says that the industry tested their cigarette ingredients by using "Kentucky Reference Cigarettes" rather than commercially-produced cigarettes, and that the industry further supplied these "reference cigarettes" to outside labs for testing by its critics as well. It points out that these special "test" cigarettes are not processed in the same manner as commercial products, thus tests done by both the tobacco industry and its critics to determine the biological effects of cigarette ingredients are "flawed."
The document further reveals that the industry adds flavors obtained from "flavor houses" that likewise refuse to disclose the ingredients used in their products, despite laws that require them to do so. Of this situation, Shook, Hardy and Bacon (SHB) advises,
- " ... Obviously, the industry cannot use the fact that it was unaware of the components of flavorings as a defense, because it continued to utilize those flavorings ..."
The SHB attorney says that if ingredients become an issue, tobacco company attorneys must de-mystify the ingredients for the jury, since people get so emotional about ingredients added to things they ingest:
If, however, the plaintiff chooses to use the ingredients issue, we must be prepared to de-mystify it. Research and actual jury experience indicate that ingredients, with their intimidating and alien names, alarm laymen without any rational basis. The jurors must be taught, therefore... that they live in a world of ingested chemicals--chemicals which are found in the food supply both naturally and as additives.....One way to do this will be through the use of examples. A toxicologist, for example, may take a prosaic and 'wholesome' product, such as a Hershey Bar, and explain what it consists of: thousands of sinister-sounding chemicals, many occurring naturally in chocolate, some of which are biologically active, many of which are used in cigarettes, and all of which the FDA has approved from human consumption....The parallel is imperfect, of course--we don't inhale the vapors of a burning Hershey Bar."
Title: Strategic and Tactical Considerations Concerning Ingredients [Privlog:] MEMORANDUM ABOUT TRIAL STRATEGIES TO DEFEND ALLEGATIONS ABOUT CIGARETTE INGREDIENTS FROM R. J. REYNOLDS OUTSIDE LITIGATION COUNSEL TO JOINT DEFENSE OUTSIDE LITIGATION COUNSEL AND PHILIP MORRIS COUNSEL AND FORWARDED TO PHILIP MORRIS COUNSEL Org. Author: R.J. Reynolds Tobacco Company Per. Author: Edwards, John; McDermott, Robert; Thomson, Maynard; [Privlog:] Edwards, J. Date: February, 1987 (by fax header) Type: report [Privlog:] MEMORANDUM Bates No. 2025005346/5367 Collection: Philip Morris, Bliley URL: http://legacy.library.ucsf.edu/tid/wwr12a00