The Cigarette Papers

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the public and to allow it to avoid having to take responsibility for the death and disease
it inflicts.

Many public health workers and tobacco control professionals—including the authors of
this book—have long suspected that the tobacco industry has known that smoking is
dangerous and addictive. But proof to substantiate this suspicion has not been available to
the medical and scientific communities, much less to the public. This situation changed
dramatically in mid-1994, when an unsolicited box containing several thousand pages of
documents from the Brown and Williamson Tobacco Corporation (B&W) arrived at
Professor Stanton Glantz's office at the University of California, San Francisco. Like the
Pentagon Papers, which

― xviii ―

revealed private doubts about the Vietnam War inside the government a generation ago,
these documents, combined with other material obtained from Brown and Williamson by
the House of Representatives Subcommittee on Health and the Environment, and some
private papers from a former research director at B&W's parent, British American
Tobacco (BAT), provide a candid, private view of the tobacco industry's thoughts and
actions over the past thirty years. This view differs dramatically from the public image
presented by the industry during that time.

Early in this period B&W and BAT frankly recognized that nicotine is an addictive drug
and that people smoke to maintain a target level of nicotine in their bodies. The
companies also recognized that smoking causes a variety of diseases, and they actively
worked to identify and remove the specific toxins in tobacco smoke that cause these
diseases. This scientific work was undertaken many years before the mainstream
scientific community had a similar understanding of these issues. Nevertheless, in the
mid-1960s, when the US Surgeon General's Advisory Committee was preparing the first
Surgeon General's report on smoking, B&W and BAT withheld this important
information, even though the Surgeon General's Advisory Committee had requested that
the tobacco industry voluntarily provide the relevant results of its research for the
committee's deliberations. Later, when it became clear that a "safe" cigarette could not be
developed, tobacco industry lawyers took increasing control of scientific research as they
tried to insulate the companies against products liability lawsuits. In the process, concerns
about legal matters and the public's perceptions of the dangers of smoking and the
tobacco industry increasingly took precedence over public health.

This book represents our complete analysis of the Brown and Williamson documents. On
July 19, 1995, we published a series of five articles, based on these materials, in the
Journal of the American Medical Association . The decision to publish these papers
represented a courageous stance on the part of the editors of JAMA and the leadership of
the American Medical Association. We are grateful to the editors of JAMA , in particular
Drummond Rennie, for providing the first forum for our work.
We are likewise grateful to the National Cancer Institute (Grant CA-61021) and the
University of California Tobacco Related Diseases Research Program (Grants 2KT-0072
and 4RT-0035) for supporting this work. We also thank Phil Lollar of UCSF and Robin
Barthalow and Tim Nolan of Lieff, Cabraser and Heimann, who provided assistance in
indexing the documents. Adriana Marchione of UCSF was invaluable in

― xix ―

final manuscript preparation, particularly in helping us track down all those irritating last-
minute details. We thank Karen Butter, Nancy Zinn, Valerie Wheat, and Florie Berger of
the UCSF Library and Center for Knowledge Management for being good-natured when
B&W tried to have the documents removed from the UCSF archive, particularly when
B&W had private investigators stake out the library. Henry and Edith Everett provided
funds to help the library put the documents on the Internet, and Jane Dystel tried to find a
publisher. Naomi Schneider served as our sponsoring editor at UC Press, Dorothy
Conway did a superlative job of editing the final manuscript, and Bill Hoffman provided
a thoughtful legal review. Joseph Cowan and Cynthia Lynch of the UCSF legal office
provided valuable advice on how to navigate the legal shoals that surround these
documents, and Christopher Patti of the UC Office of the General Counsel did a fine job
of protecting our academic and intellectual freedom to pursue this project, in the face of
B&W's efforts to keep the documents from public scrutiny.

Finally, in an era in which public institutions are increasingly held in disdain, we would
like to thank the University of California for providing an environment committed to
academic freedom and the public interest. It would have been simpler—and cheaper—for
the university simply to walk away from this project. After all, the history of the tobacco
issue is one in which many large institutions have followed the path of least resistance
and failed to confront the issues raised in these documents. No administrator or other
official ever told us to stop. Quite the contrary, we were encouraged and protected in our
work. This behavior is what makes the University of California a great public institution.

Most of all, we owe thanks to Frieda Glantz, who tolerated the authors' tiptoeing through
her room at all hours to get to the computer in the study. No teenager should have to
make such a sacrifice.

These documents provide an opportunity to see firsthand how the brown plague of
tobacco has been allowed to flourish and to spread. Although the papers are sometimes
technical, we hope that readers will find them as eye-opening as we have. Perhaps this
understanding will finally lead the public and public policy makers to deal with the
tobacco industry in a manner appropriate to the amount of death and suffering it
knowingly creates.

San Francisco
October 1995
 ―1―

Chapter 1
Looking through a Keyhole at the Tobacco Industry
[The documents] may be evidence supporting a "whistle-blower's" claim that the tobacco
company concealed from its customers and the American public the truth regarding the
health hazards of tobacco products.
Federal Judge Harold Greene [Maddox v Williams 855 Fed. Supp. 406, at 414, 415
(D.D.C. 1994) ]

Introduction

Tobacco has been controversial at least since its introduction into Europe shortly after
Columbus reported that North American natives used its dried leaves for pleasure (1, 2).
The first medical report of tobacco's ill effects dates to 1665, when Samuel Pepys
witnessed a Royal Society experiment in which a cat quickly expired when fed "a drop of
distilled oil of tobacco." In 1791 the London physician John Hill reported cases in which
use of snuff caused nasal cancers. Not until the late 1940s, however, did the modern
scientific case that tobacco causes disease begin to accumulate rapidly. Epidemiological
and experimental evidence that smoking causes cancer led to the "cancer scares" in the
1950s and, ultimately, to the 1964 Surgeon General's report on smoking and health,
which concluded that smoking causes lung cancer (3). By responding to these challenges
from the scientific community with aggressive legal, public relations, and political
strategies, the tobacco industry has been largely successful in protecting its profits in
spite of overwhelming scientific and medical evidence that tobacco products kill and
disable hundreds of thousands of smokers and nonsmokers every year (1, 4).

What did the tobacco industry actually know about the addictive nature of nicotine and
the dangers of smoking? How did the industry develop its successful legal, public
relations, and political programs? Until now, the public's understanding of these
questions has been based largely

―2―

on observation of the industry's behavior and suppositions by a few journalists and public
health professionals. This situation changed abruptly in mid-1994, when several thousand
pages of internal documents from the Brown and Williamson Tobacco Corporation
(B&W) and its parent, BAT Industries (formerly British American Tobacco) of the
United Kingdom, became public. These documents reveal that the tobacco industry's
public position on smoking and health has diverged dramatically not only from the
generally accepted position of the scientific community but also from the results of its
own internal research (see table 1.1, p. 15). While even these documents do not provide a
complete picture, they offer a candid look at the tobacco industry's internal workings
during the smoking and health "controversy" during the last half of the twentieth century.

BAT is the second-largest private cigarette manufacturer in the world. In 1992 the
company sold 578 billion cigarettes (5), 10.7 percent of the total world output and more
than were consumed in the entire US market that year (6). Its wholly owned US
subsidiary, B&W, is now the third-largest cigarette maker in this country. Its US sales
increased from about 10 percent of the market during the 1960s to about 18 percent in the
1970s, then fell back to about 10 percent in the 1980s (7). In 1994 it had an 18 percent
share of the $48 billion US market, including the domestic cigarette business of
American Brands, which B&W purchased in 1995 (8). B&W's domestic brands (before
buying American Brands) include Kool, Viceroy, Raleigh, Barclay, Belair, Capri, Fact,
and Richland, as well as GPC generic cigarettes.

The tobacco industry has used three primary arguments to prevent government regulation
of its products and to defend itself in products liability lawsuits. First, tobacco companies
have consistently claimed that there is no conclusive proof that smoking causes diseases
such as cancer and heart disease. Second, tobacco companies have claimed that smoking
is not addictive and that anyone who smokes makes a free choice to do so. And, finally,
tobacco companies have claimed that they are committed to determining the scientific
truth about the health effects of tobacco, both by conducting internal research and by
funding external research.

These arguments have been essential to the industry's success in claiming that its
products should not be subject to further government regulation and that it should not be
held legally responsible for the health effects of its products. By refusing to admit that
tobacco is addictive and that it causes disease, the tobacco industry has been able (so far)
to

―3―

resist efforts to regulate its products. In addition, the industry has been able to argue that
cigarette smoking is a matter of "individual choice," thereby essentially blaming its
customers for the diseases they contract by using tobacco products. Finally, the industry's
stated willingness to support health-related research has added credibility to its claim that
the health effects of smoking have not been scientifically proven, thus helping to allay
public fears about its products.

This book analyzes internal documents from the files of Brown and Williamson—
documents that were delivered to us, as well as other related documents that have been
released to the public during the past year. The documents consist primarily of internal
memoranda, letters, and research reports related to B&W and BAT. Many of them are
marked "confidential" or "attorney work product," suggesting that the authors never
expected them to be released outside the corporation, not even for legal proceedings.
These documents demonstrate that the tobacco industry in general, and Brown and
Williamson in particular, has engaged in deception of the public for at least thirty years.
They show that other cigarette manufacturers participated in some of these activities. The
documents are listed at the back of the book under the heading "List of Available
Documents" and are cited in the text in curly braces (e.g., {1234.56}). Copies of the
actual documents are deposited in the Archives and Special Collections Department of
the Library at the University of California, San Francisco, where they are available to the
public. They are also available over the Internet at World Wide Web address
http://www.library.ucsf.edu/tobacco. The library also has a CD-ROM version of the
Documents for sale.

In the documents nicotine is routinely seen as addicting and is always treated as the
pharmacologically active agent in tobacco. There is no question that B&W and BAT
regarded nicotine's pharmacological (drug) effects as key to the intended smoking
experience. The documents also demonstrate that the tobacco industry's professed public-
spirited approach to pursuing the truth about smoking and health has been a sham. Its
purported willingness to engage in and disseminate health-related research was, in reality,
always subservient to commercial and litigation considerations. Initially, the companies'
researchers tried to discover the toxic elements in cigarette smoke so that a "safe"
cigarette, which would deliver nicotine without also delivering the toxic substances,
could be developed. When that objective proved to be unattainable, largely because of the
number of toxins involved, decisions about health-related research passed almost
exclusively to lawyers. The documents show that

―4―

lawyers from B&W and other tobacco companies played a central role in research
decisions, both within B&W and BAT and also in industry-sponsored research
organizations.

The principal aim of this lawyer-controlled research effort was not to improve existing
scientific or public understanding of the effects of smoking on health but, rather, to
minimize the industry's exposure to litigation liability and additional government
regulation. Where the goals of determining and disseminating the truth conflicted with
the goal of minimizing B&W's liability, the latter consistently won out. In particular,
even after B&W's research had shown that cigarettes cause disease and are addictive,
under its lawyers' direction B&W sought to avoid generating any new results
reconfirming that smoking causes disease or that nicotine is addictive. B&W sought to
avoid affiliation with, or even knowledge of, such research results, for fear they could be
used to show that B&W believed that smoking causes disease or that nicotine is
addictive. B&W also sought to prevent the dissemination or disclosure of such results,
either in court or in any public forum—apparently to the point of removing some relevant
documents from its files and shipping them offshore.
Many of the documents are correspondence among company lawyers. In addition to
providing insight into B&W and BAT's legal thinking, the lawyers effectively serve as
candid witnesses for what the company actually believed at any particular time about
disease causation and addiction. The lawyers appear to have accepted the causation and
addiction hypotheses about smoking. The 1970s–1980s documents from lawyers
specifying what could and could not be claimed in company public relations and
advertising show that some lawyers regarded those hypotheses as so well established that
they could not be denied directly without risking liability.

The documents show that by the 1960s the tobacco industry in general, and B&W and
BAT in particular, had proven in its own laboratories that cigarette tar causes cancer in
animals. In addition, by the early 1960s BAT's scientists (and B&W's lawyers) were
acting on the assumption that nicotine is addictive. BAT responded by secretly
attempting to create a "safe" cigarette that would minimize dangerous elements in the
smoke while still delivering nicotine. Publicly, however, it maintained that cigarettes are
neither harmful nor addictive. The tobacco industry's primary goal has been to continue
as a large commercial enterprise by protecting itself from litigation and government
regulation. To this day, despite overwhelming scientific evidence and official govern-

―5―

ment reports, the tobacco industry contends that tobacco products are not addictive and
do not cause any disease whatsoever.

B&W's And Bat's Corporate Structure

Brown and Williamson and its parent company, BAT Industries, have a close corporate
relationship that has evolved over the years. The Brown and Williamson Tobacco
Company was formed in 1906. It was purchased in 1927 by the British American
Tobacco Company (BATCo), and its name was changed to the Brown and Williamson
Tobacco Corporation {1006.01}. In 1976 BATCo merged with Tobacco Securities Trust
to form BAT Industries.

BAT Industries is the parent company of many cigarette manufacturers throughout the
world, including Brown and Williamson (US), BAT Cigarettenfabriken (Germany),
Souza Cruz (Brazil), and British American Tobacco (which produces cigarettes in more
than forty-five countries for domestic and export markets in Europe, Australia, Latin
America, Asia, and Africa). In addition, BAT Industries is associated with Imasco in
Canada, which is the parent company for Imperial Tobacco. BAT is also the parent
company of several insurance and financial services, including Farmers Group (US),
Eagle Star (UK), and Allied Dunbar (UK) (9).

Given B&W's status as a subsidiary of BAT, it was natural that the two companies would
share information, not only about product development and sales and marketing strategies
but also about their scientific research on the health dangers of cigarettes. As we discuss
in chapter 2, B&W and the other domestic tobacco companies jointly formed an
organization to study smoking and health issues in the mid-1950s, and British tobacco
companies formed a similar group in England. In addition, as we discuss in chapter 3,
BAT established research facilities (both internally and through contract laboratories) in
Europe (England, Germany, and Switzerland) to study the health effects of smoking. The
documents are replete with examples of information from all these research efforts,
which was shared between B&W and BAT.

This sharing of information, although obviously of mutual benefit, also caused problems.
As the evidence of the health dangers of smoking accumulated, B&W realized that it
might become a defendant in products liability lawsuits by plaintiffs who claimed that
their illnesses had been caused by cigarettes. Tobacco industry lawyers began to realize
that the scientific research results that the companies were sharing could be

―6―

extremely damaging if they became accessible to plaintiffs through discovery procedures.

Tobacco companies in the United States were particularly concerned about the potential
for lawsuits because products liability laws had been significantly strengthened during
the 1960s. B&W therefore began to explore ways to avoid receiving unwanted
information (i.e., information useful to a plaintiff) or to protect such information from
discovery. In the United Kingdom, on the other hand, products liability laws have not
historically been as strong as in the United States. BAT has therefore been more
concerned about being dragged into a US lawsuit, because of its status as B&W's parent
company, than about products liability suits in the United Kingdom (see chapter 7). A
further problem for both companies was the possibility that statements attributable to
subsidiary companies, including nontobacco companies, might be harmful to them in
products liability litigation.

History Of The B&W Documents

On May 12, 1994, an unsolicited box of what appeared to be tobacco company

documents was delivered to Professor Stanton Glantz at the University of California, San
Francisco (UCSF). The documents in the box dated from the early 1950s to the early
1980s. They consisted primarily of confidential internal memoranda related to B&W and
BAT. Many of the documents contained internal discussions of the tobacco industry's
public relations and legal strategies over the years, and they were often labeled
"confidential" or "privileged." The return address on the box was simply "Mr. Butts."

A few days earlier, US news media had started running stories based on what they said
were internal documents from Brown and Williamson. In addition, internal documents
related to Brown and Williamson were the subject of hearings held on June 23, 1994,
before the US House of Representatives Subcommittee on Health and the Environment.
The chairman and CEO of B&W, Thomas Sandefur, testified at these hearings and
provided additional B&W documents to the subcommittee. In this book we analyze the
documents delivered to Professor Glantz as well as the documents provided to the
subcommittee, which were later released to the public, documents on nicotine research
that B&W released to the press in May 1994 following a story in the New York Times
(10), and documents obtained from the estate of a former BAT chief scientist.

―7―

Brown and Williamson has claimed that some of the documents were stolen from the law
firm of Wyatt, Tarrant and Combs in Louisville, Kentucky, by a former paralegal, Dr.
Merrell Williams (11, 12). B&W had hired the Wyatt firm to sort and analyze millions of
pages of B&W's internal communications, and Williams was one of the paralegals
working on the project. This project involved reviewing about 8,600,000 pages of
documents, 70,000 pages of which had been identified as "critical" {1002.01} (figure
1.1). Our analysis is based on roughly 10,000 pages, which represent only about 0.1
percent of the documents that were being reviewed.

Williams was hired by the Wyatt firm in 1988 but was laid off in 1992. The following
year, Williams, a smoker, underwent major heart surgery. On July 9, 1993, he informed
the Wyatt firm through an attorney that he had possession of some of the documents he
had been hired to analyze. He returned the documents with a letter stating that his heart
condition had been caused by the stress of reviewing the documents as well

[Full Size]

Figure 1.1. The B&W document control project involved screening millions of pages of
documents
{1002.01}. Our analysis is based on about 0.1 percent of the screened documents.
 ―8―

as a lifetime of smoking Brown and Williamson brands of cigarettes, and he threatened to

sue unless the Wyatt firm settled his claim (13). The Wyatt firm responded by filing a
civil suit in the Circuit Court for Jefferson County, Kentucky, accusing Williams of
stealing the documents. On January 7, 1994, Judge Thomas Wine issued an order
prohibiting Williams from discussing or disseminating any of the information contained
in the documents [Maddox v Williams , Jefferson Cir. Ct., Case No. 93 CI04806]. (On
April 3, 1995, Judge Wine modified the order so that Williams could speak with his
lawyer about the case. The modification was necessary, according to Judge Wine,
because the documents in question were apparently part of the public domain in
California, the Congress, and numerous news media, and because B&W had moved for
contempt sanctions against Williams.)

On May 17, 1994, the Superior Court for the District of Columbia, at the request of
B&W, issued subpoenas against several news agencies that had published or aired
articles on some Brown and Williamson documents. The agencies receiving subpoenas
were ABC, CBS, National Public Radio, the New York Times , the Washington Post , the
Louisville Courier-Journal, USA Today, and the National Law Review . Subpoenas were
also issued against Congressmen Henry Waxman (D-CA) and Ron Wyden (D-OR), who
were members of the House Subcommittee on Health and the Environment. The purpose
of the subpoenas, according to B&W, was to obtain copies of the documents so that
B&W could determine whether they had been obtained in violation of the Kentucky court
order against Merrell Williams.

The news organizations refused to turn over the documents in their possession on the
grounds that they did not want to reveal the identity of a confidential source. The matter
relating to the subpoenas issued against Congressmen Waxman and Wyden was removed
to the US District Court for the District of Columbia on May 19, 1994. In a decision
dated June 6, 1994, Judge Harold H. Greene quashed the subpoenas. Because the
congressmen were using the documents in connection with a congressional investigation
of B&W, the judge concluded, they were protected from the subpoenas under the Speech
or Debate Clause of the US Constitution (Article I, Section 6) [Maddox v Williams , 855
F. Supp. 406 (D.D.C. 1994)]. That clause, which was designed to preserve legislative
independence, provides that senators and representatives may not be questioned in any
other place regarding speech or debate in either house of Congress. Despite this provision
of the US Constitution, the subpoenas issued against Waxman and Wyden had directed
them to submit in

―9―

person to depositions in the law offices of Brown and Williamson's attorneys and to
provide documents or copies to B&W from among the documents in the possession of
Congress. According to Judge Greene, "It would be difficult to find orders that more
directly impede the official responsibilities of the Congress and are thus in direct
violation of the Speech or Debate Clause" [at 410, 411].

Following this decision, subpoenas issued by B&W were also quashed in three separate
state court proceedings. On July 22, 1994 [in Maddox v Williams , No. 94-202], the
Circuit Court for Arlington County, Virginia, quashed subpoenas issued to USA Today
and one of its reporters. In November 1994 a Massachusetts court, citing "the public
interest in the free flow of information," refused to enforce a subpoena issued by B&W
against Professor Richard Daynard of Northeastern University School of Law [Robert J.
Maddox v Merrell Williams , Civil Action No. 94-3389D]. Finally, on April 3, 1995, the
Jefferson Circuit Court in Kentucky quashed subpoenas issued to the Louisville Courier-
Journal and USA Today , stating that

despite B&W's contentions to the contrary, the production of the documents is to identify
the source. While the attorney-client privilege may well be a bedrock of our judicial
system, freedom of the press and its ability to protect sources of information is a pillar of
our Federal Constitution [Maddox v Williams , Case No. 93 C104806].

In addition to the quashing of the subpoenas, other courts in other contexts have blocked
B&W's attempts to suppress the documents. Thus, in April 1995 in an action by the state
of Florida against several tobacco companies, the plaintiff introduced a set of B&W
documents and the court denied defendants' motion to have the documents sealed,
reasoning that

most, if not all, of the over 800 "stolen" documents filed with the Court as part of
Plaintiffs' Request for Admissions were part of the public domain prior to being filed in
this Court. These documents have been the subject of newspaper articles, television
programs and Congressional hearings. ... To now seal the court files to protect the
confidentiality of these documents would be futile [State of Florida v American Tobacco
Co. (Cir. Ct. of 15th Judicial District for Palm Beach County, Florida, No. CL95-
1466AO)].

During the summer of 1994 Professor Glantz placed the documents in the Archives and
Special Collections Department of the UCSF Library, where they were made available to
the public. On January 6, 1995, attorneys for a nonsmoker who had developed lung
cancer and was suing Philip Morris Tobacco Company for damages attempted to
convince a

― 10 ―

Mississippi judge to accept these documents into evidence [Butler v. Philip Morris , Civil
Action No. 94-5-53, Cir. Ct., Jones County, Mississippi]. Twenty-five days later, on
February 3, 1995, Brown and Williamson demanded that the University of California
return the documents on the grounds that they were stolen. B&W also sent private
investigators to the library to stake out the archives and to photograph people reading the
documents. On February 14, 1995, B&W sued the University of California, demanding
return of the documents and access to the library circulation records to learn who had
read the documents [Brown & Williamson Tobacco Corp. v. Regents of the University of
California (Super. Ct. for County of San Francisco, No. 967298)].

At a hearing on May 25, 1995, San Francisco Superior Court Judge Stuart Pollak denied
B&W's attempt to "recover" the documents from the UCSF Library (11, 14). In reaching
his decision, the judge noted the First Amendment concerns raised by B&W's request that
the university be prevented from retaining or using the documents:

But the nature of what is being requested would in fact impinge upon public discussion,
public study of this information, which has a bearing on all kinds of issues of public
health, public law, documents which may be taken to suggest the advisability of
legislation in all kinds of areas.

So, there is ... a very strong public interest in permitting this particular information,
judging from what has been shown in the papers, as to what it concerns, permitting this
information to remain available for use by the university or by others who may obtain it
from the university [transcript of hearing, at 58, 59].

Again, as the Florida court had done, the San Francisco court noted that much, if not all,
of the information in the documents had already been made available to the news media.
"The genie is out of the bottle. These documents are out" [at 61].

The San Francisco court stayed its ruling for twenty days to give B&W time to appeal,
thus leaving in effect a temporary restraining order against the university, which
prevented it from allowing public access to the documents. B&W appealed to California's
Court of Appeal and requested that the temporary restraining order be kept in force; the
Court of Appeal denied this request without comment on June 22, 1995, as did the
California Supreme Court on June 29, 1995. Thus, all the B&W documents used in the
preparation of this book have been declared to be in the public domain, either by
Congress or by the courts, and, in the case of some of the documents, by two or more
authorities. At 12:01 A.M. PST on July 1, 1995, the University of California San
Francisco Library

― 11 ―

and Center for Knowledge Management posted the documents on the Internet
(http://www.library.ucsf.edu/tobacco).

Meanwhile, the authors of this book were working on their analysis of the documents and
submitted a series of five related articles (which represent about 15 percent of the
material in this book) to the Journal of the American Medical Association (JAMA) . After
an extensive peer review, the editors of JAMA decided to devote most of the July 19,
1995, issue to these papers (15–19), together with an article detailing Brown and
Williamson's reaction to the papers (11). In addition, JAMA took the unprecedented step
of publishing an editorial, signed by the editors of JAMA and all the members of the
Board of Trustees of the American Medical Association, demanding strong action to
control the tobacco industry (20).

Publication of these papers attracted international attention, including that of President

Bill Clinton, who read the papers and used them as part of his decision-making process to
ask the federal Food and Drug Administration (FDA) to propose regulations of nicotine
as an addictive drug and cigarettes and smokeless tobacco products as drug delivery
devices (21). The fact that nicotine was in the product to affect the function of the body
and that cigarettes could be engineered to control the dose of nicotine delivered got to the
core of the issue of FDA jurisdiction to regulate cigarettes.

Limitations Of The Evidence

As noted above, the documents provide our first look—through a keyhole—at the inner
workings of the tobacco industry during the crucial period in which the scientific case
that smoking was addicting smokers and killing them solidified. Our view, however, is a
limited one. One of its limitations has to do with the possibility of selection bias; that is,
the documents may have been picked by a whistle-blower with an eye toward smoking
guns. Another limitation, which shows up particularly in the legal and public relations
aspects, is that we cannot always determine from the discussion in the documents
whether particular ideas were actually carried out. In some cases the public record clearly
shows that the contemplated actions were taken. In others—particularly when the
industry's more sub rosa activities are being discussed—it is not obvious where the line
between contemplated and actual action lies. As part of our analysis, we have tried to
indicate which of these situations existed.

― 12 ―

In particular, the attorneys often discuss proposed courses of action, but the documents
do not always clearly indicate which course of action the company ultimately chose.
Lawyers by nature are asked to evaluate the legal risks of proposed courses of action, but
their advice is not always followed. Nonetheless, we were struck by the active role the
lawyers played, not just as advisers but also as managers; they often decided which
research would be done or not done, who would be funded, and what public relations and
political actions would be pursued. Generally speaking, the documents authored by
attorneys did not outline possible courses of action or recommend which course to
follow; instead, they strongly advocated that certain policies or actions be taken, some of
which appear to raise serious ethical questions.

Another possible limitation is that the documents came from a single tobacco company
and primarily reflect only the plans and actions of that company. Nevertheless, the
documents include correspondence between B&W and other tobacco companies and
trade organizations, as well as discussions of the actions of other companies and the
industry in general. Many of the documents relate to industry-wide cooperation and
reflect the views of participants, including lawyers, representing other companies and
trade groups. In addition, other evidence—such as that presented in the Haines case,
discussed in chapter 7—paints a similar picture of the actions of other tobacco
companies. In any event, in our analysis of the documents, we have attempted to keep
clear the distinction between the actions of B&W alone and the actions of the tobacco
industry generally.

Despite these limitations, we are confident about the conclusions we draw from the
documents. When lawyers are shown steering away from projects on the addictiveness or
health effects of tobacco, we believe we can reasonably conclude that B&W and BAT
knew that tobacco is addictive and causes disease; if it had been genuinely unconvinced
of the dangers of smoking, then it would have had no concern that new research would
provide ammunition for the enemy. The analogy would be to a criminal defense lawyer
who doesn't ask the defendant whether he actually committed the crime because he does
not want to be hampered in making his defense by embarrassing knowledge of the
defendant's guilt. It will be easier to claim that the defendant is innocent, or even to put
the defendant on the stand to testify to his innocence, if the lawyer does not ask the hard
questions. The lawyers and scientists who wrote many of the documents were unusually
candid in their remarks—possi-

― 13 ―

bly because they believed that the documents would be protected by the work product
rule or attorney-client privilege, and therefore would never become public.

Conclusion

Although, as noted, this book analyzes only a tiny fraction of the documents that B&W
had selected for review, the material in that small sample contains overwhelming
evidence of the irresponsible and deceptive manner in which B&W has conducted its
tobacco business. As will be seen in the following chapters, for more than thirty years
B&W has been well aware of the addictive nature of cigarettes, and in the course of those
years it has also learned of numerous health dangers of smoking. Yet, throughout this
period, it chose to protect its business interests instead of the public health by consistently
denying any such knowledge and by hiding adverse scientific evidence from the
government and the public, using a wide assortment of scientific, legal, and political
techniques.

The documents also demonstrate that B&W's conduct was representative of the tobacco
industry generally. B&W acted in concert with the other domestic tobacco companies on
numerous projects, the most important of which were specifically designed to prevent, or
at least delay, public knowledge of the health dangers of smoking and to protect the
tobacco companies from liability if that knowledge became public.
In his opinion quashing B&W subpoenas against Congressmen Waxman and Wyden,
Judge Greene stated that it would be inappropriate to withhold the information in the
documents from public scrutiny:

[The documents] may be evidence supporting a "whistle-blower's" claim that the tobacco
company concealed from its customers and the American public the truth regarding the
health hazards of tobacco products, and that he was merely bringing them to the attention
of those who could deal with this menace. With the situation in that posture, to accept
blindly the B&W "stolen goods" argument would be to set a precedent at odds with the
law, with equity, and with the public interest.

If the B&W strategy were accepted, those seeking to bury their unlawful or potentially
unlawful acts from consumers, from other members of the public, and from law
enforcement or regulatory authorities could achieve that objective by a simple yet
ingenious strategy: all that would need to be done would be to delay or confuse any
charges of health hazard, fraud, corruption, overcharge, nuclear or chemical
contamination, bribery, or other misdeeds, by focussing instead on inconvenient
documentary evidence and labelling it

― 14 ―

as the product of theft, violation of proprietary information, interference with contracts,

and the like. The result would be that even the most severe public health and safety
dangers would be subordinated in litigation and in the public mind to the malefactor's tort
or contract claims, real or fictitious.

The law does not support such a strategy or inversion of values. There is a constitutional
right to inform the government of violations of federal laws—a right which under [United
States Constitution] Article VI supersedes local tort or contract rights and protects the
"informer" from retaliation [Maddox v Williams , 855 F. Supp. 406, at 414, 415 (D.D.C.
1994)].

In this spirit, we will describe in detail the contents of the Brown and Williamson
documents and the story that they tell. There is little doubt that, had the information
contained in the documents come to light at an earlier time, the history of tobacco control
in the United States would have been vastly different.

― 15 ―

TABLE 1.1 PUBLIC VERSUS PRIVATE STATEMENTS MADE BY THE TOBACCO INDUSTRY
Nicotine and Addiction
Summary By the early 1960s BAT and B&W had developed a sophisticated understanding of
nicotine pharmacology and knew that nicotine was pharmacologically addictive.
 Publicly, however, the tobacco industry has maintained and continues to maintain that
nicotine is not addictive. The scientific community was much slower to appreciate
nicotine addiction: the Surgeon General did not conclude that nicotine was addictive
until 1988 (22).
Surgeon 1964: "The tobacco habit should be characterized as an habituation rather than an
General's addiction" (3).
Reports
1979: "[It] is no exaggeration to say that smoking is the prototypical substance-abuse
dependency and that improved knowledge of this process holds great promise for
prevention of risk" (23).
1988: "After carefully examining the available evidence, this Report concludes that:
• Cigarettes and other forms of tobacco are addicting.
• Nicotine is the drug in tobacco that causes addiction.
• The pharmacologic and behavioral processes that determine tobacco addiction are
similar to those that determine addiction to drugs such as heroin and cocaine" (22, pp.
1–2).
B&W/BAT "There is increasing evidence that nicotine is the key factor in controlling, through the
Research central nervous system, a number of beneficial effects of tobacco smoke, including its
Results action in the presence of stress situations. In addition, the alkaloid [nicotine] appears to
be intimately connected with the phenomena of tobacco habituation (tolerance) and/or
addiction." From The Fate of Nicotine in the Body, a report describing results of
contract research conducted for BAT by Battelle Memorial Institute in Geneva,
Switzerland, 1963 {1200.20}.
"Chronic intake of nicotine tends to restore the normal physiological functioning of the
endocrine system, so that ever-increasing dose levels of nicotine are necessary to
maintain the desired action. ... This unconscious desire explains the addiction of the
individual to nicotine." From "A Tentative Hypothesis on Nicotine Addiction," an essay
written by scientists at Battelle and distributed to senior executives at BAT and B&W,
1963 {1200.01, p. 1}.
B&W/BAT "Moreover, nicotine is addictive. We are, then, in the business of selling nicotine, an
Private addictive drug effective in the release of stress mechanisms." Addison Yeaman, vice
Statements president and general counsel, B&W, 1963 {1802.05, p. 4}.
Tobacco "I do not believe that nicotine is addictive ... nicotine is a very important constituent in
Industry's the cigarette smoke for taste." Thomas Sandefur, chairman and CEO, B&W, testifying
Public before the Health and Environment Subcommittee, Energy and Commerce Committee,
Statements House of Representatives, June 23, 1994 (24).

(Table continued on next page)

― 16 ―
TABLE 1.1 (continued )
Low-Tar, Low-Nicotine Cigarettes and Smoker Compensation
Summary Smokers compensate for the lack of nicotine in low-tar, low-nicotine cigarettes by
puffing more frequently, by increasing the depth or duration of smoke inhalation, by
smoking more cigarettes per day, and by smoking cigarettes to a shorter butt length.
This means that smokers of low-tar, low-nicotine cigarettes are exposed to more "tar"
and other harmful chemicals than would be indicated by an analysis of the cigarette
smoke. This phenomenon, known as smoker compensation, was acknowledged
internally in the tobacco industry by the early 1970s but was not appreciated in the
scientific community until the 1980s.
Surgeon 1966: "The preponderance of scientific evidence strongly suggests that the lower the
General's 'tar' and nicotine content of cigarette smoke, the less harmful would be the effect" (25).
Reports
1979: "[The public] should be warned that, in shifting to a less hazardous cigarette,
they may in fact increase their hazard if they begin smoking more cigarettes or inhaling
more deeply" (23).
1981: "Smokers may increase the number of cigarettes they smoke and inhale more
deeply when they switch to lower yield cigarettes. Compensatory behavior may negate
any advantage of the lower yield product or even increase the health risk" (25).
B&W/BAT "[W]hatever the characteristics of cigarettes as determined by smoking machines, the
Research smoker adjusts his pattern to deliver his own nicotine requirements." Minutes from
Results BAT's research conference held in Duck Key, Florida, 1974, taken by SJG [S. J. Green
of BAT R&D] {1125.01, p. 2}.
"Compensation study conducted by Imperial Tobacco Co., a BATCo affiliate, [shows
that a smoker] adjusts his smoking habits when smoking cigarettes with low nicotine
and TPM [total particulate matter] to duplicate his normal cigarette nicotine intake."
From document titled "Chronology of Brown & Williamson Smoking and Health
Research," regarding research conducted in 1975. Chronology dated 1988 {1006.01, p.
27}.
B&W/BAT "In most cases, however, the smoker of a filter cigarette was getting as much or more
Internal nicotine and tar as he would have gotten from a regular cigarette." Ernest Pepples, vice
Statements president and general counsel, B&W, 1976 {2205.01, p. 2}.
Tobacco "All the fuss about smoking got me to thinking I'd either quit or smoke True. I smoke
Industry's True." Advertisement for Lorillard's True cigarettes in Ms. magazine, October 1975.
Public
"I like to smoke, and what I like is a cigarette that isn't timid on taste. But I'm not living
Statements
in some ivory tower. I hear the things being said against high-tar smoking as well as the
next guy. And so I started looking. For a low-tar smoke that had some honest-to-
goodness taste. Advertisement for Vantage cigarettes in Time magazine, November 9,
1977, pp. 86–87.
(Table continued on next page)

― 17 ―

TABLE 1.1 (continued )

Role of the Tobacco Industry's Research Committee/Council for Tobacco Research
Summary The Tobacco Industry Research Committee (TIRC), later renamed the Council for
Tobacco Research-U.S.A., Inc. (CTR), was created by US tobacco companies in 1954.
The tobacco industry has publicly claimed that TIRC/CTR is an independent
organization that funds unbiased research into the health effects of smoking. Internally,
however, tobacco industry representatives have stated that TIRC/CTR was created for
public relations purposes, and that it later fulfilled political and legal roles.
B&W/BAT "Originally, CTR was organized as a public relations effort. ... The research of CTR
Private also discharged a legal responsibility. ... Finally the industry research effort has
Statements included special projects designed to find scientists and medical doctors who might
serve as industry witnesses in lawsuits or in a legislative forum." Ernest Pepples, vice
president and general counsel, B&W, 1978 {2010.02, p. 2}.
Tobacco "From the outset, the Tobacco Industry Research Committee has made clear that the
Industry's object of its research program is to encourage scientific study for facts about tobacco
Public use and health. Its position is that research will help provide the knowledge about lung
Statements cancer and heart disease for a full evaluation of all factors being studied in connection
with these diseases." Public relations document, circa 1963 {1903.03, p. 1}.
"The Council for Tobacco Research-U.S.A., Inc., is the sponsoring agency of a
program of research into questions of tobacco use and health. ... The Council awards
research grants to independent scientists who are assured complete scientific freedom in
conducting their studies. Grantees alone are responsible for reporting or publishing
their findings in the accepted scientific manner—through medical and scientific
journals and societies" (26).

(Table continued on next page)

― 18 ―

TABLE 1.1 (continued )

Smoking and Disease, 1960's
Summary By the early 1960s the scientific community had determined that smoking is causally
related to lung cancer and probably related to heart disease. Results from tobacco
industry laboratories supported these conclusions, but the tobacco industry publicly
denied that the links had been proven.
Surgeon 1964: "Cigarette smoking is causally related to lung cancer in men; the magnitude of
General's the effect of cigarette smoking far outweighs all other factors. The data for women,
Reports though less extensive, point in the same direction" (3).
"Cigarette smoking is the most important of the causes of chronic bronchitis in the
United States, and increases the risk of dying from chronic bronchitis" (3).
"Male cigarette smokers have a higher death rate from coronary artery disease than
non-smoking males, but it is not clear that the association has causal significance" (3).
"Cigarette smoking is a significant factor in the causation of cancer of the larynx [and]
an association exists between cigarette smoking and cancer of the urinary bladder in
men" (3).
B&W/BAT "Scientists with whom I talked [at BAT's laboratories in Great Britian] were unanimous
Research in their opinion that smoke is weakly carcinogenic under certain conditions and that
Results efforts should be made to reduce this activity." Dr. R. B. Griffith, head of R&D, B&W,
1965 {1105.01, p. 2}.
B&W/BAT "At the best, the probabilities are that some combination of constituents of smoke will
Private be found conducive to the onset of cancer or to create an environment in which cancer
Statements is more likely to occur." Addison Yeaman, vice president and general counsel, B&W,
1963 {1802.05, p. 1}.
Tobacco "The smoking of tobacco continues to be one of the subjects requiring study in the lung
Industry's cancer problem, as do many other agents and influences in modern living. Science does
Public not yet know enough about any suspected factors to judge whether they may operate
Statements alone, whether they may operate in conjunction with others, or whether they may affect
or be affected by factors of whose existence science is not yet aware." Public relations
document, circa 1967 {1903.03, p. 3}.

(Table continued on next page)

― 19 ―

TABLE 1.1 (continued )

Smoking and Disease, 1970s
Summary Throughout the 1970s B&W and BAT (and probably the other tobacco companies as
well) privately engaged in a massive research campaign to identify and remove any
toxic compounds identified in tobacco smoke. Privately, B&W and BAT scientists
concluded there was no scientific controversy about the dangers of smoking. Their goal
was to create a "safe" cigarette. However, their research showed that it would be very
difficult to remove all the different toxic compounds in tobacco smoke. Publicly, the
industry continued to deny that smoking had been proven harmful to health.
Surgeon 1972: "Tobacco use is associated with increased risk of coronary heart disease;
General's cerebrovascular disease (stroke); aortic aneurysm; peripheral vascular disease; chronic
Reports obstructive bronchopulmonary disease (COPD); cancers of the lung, lip, larynx, oral
cavity, esophagus, urinary bladder, and pancreas; and gastrointestinal disorders such as
peptic ulcer disease. In addition, maternal smoking during pregnancy retards fetal
growth" (27).
B&W/BAT "Carbon monoxide [CO] will become increasingly regarded as a serious health hazard
Research for smokers. The methods of control available are ventilation, diffusion and the choice
Results of smoking materials. But the inverse relationship of polycyclic aromatics and carbon
monoxide is still observed, e.g. lithium hydroxide reduces CO substantially but is
coupled with an increase in tumorigenic activity." Minutes from BAT research
conference held in Duck Key, Florida, 1974, taken by S. J. Green of BAT R&D
{1125.01, p. 3}.
B&W/BAT "There has been no change in the scientific basis for the case against smoking.
Private Additional evidence of smoke-dose related incidence of some diseases associated with
Statements smoking has been published. But generally this has long ceased to be an area for
scientific controversy." Minutes from BAT research conference held in Sydney,
Australia, 1978, taken by S. J. Green of BAT R&D {1174.01, p. 1}.
Tobacco "Taking all the above into consideration, we believe there is sound evidence to
Industry's conclude that the statement 'cigarettes cause cancer' is not a statement of fact but
Public merely an hypothesis " [emphasis in original]. B&W public relations document, 1971
Statements {2110.06, p. 10}.

(Table continued on next page)

― 20 ―

TABLE 1.1 (continued )

Smoking and Disease, 1980s
Summary B&W and BAT continued their efforts to develop a "safer" cigarette during the 1980s.
The focus of their research was on minimizing the "biological activity," or carcinogenic
potential, of their products. Unfortunately, that proved more difficult than expected. In
addition, as the scientific community noted, even if less carcinogenic cigarettes could
be designed, these cigarettes would still cause some cancer, as well as heart disease and
other noncancer diseases.
Surgeon 1981: "Smoking cigarettes with lower yields of 'tar' and nicotine reduces the risk of
General's lung cancer and, to some extent, improves the smoker's chance for longer life, provided
Reports there is no compensatory increase in the amount smoked. However, the benefits are
 1989: "Smoking is responsible for more than one of every six deaths in the United
States. Smoking remains the single most important preventable cause of death in our
society" (28).
B&W/BAT "Cigarette brands can be readily distinguished [in terms of mutagenicity as judged by
Research an Ames test]. This is in contrast with the earlier mouse skin painting results. An
Results unfortunate side-effect is that the sensitivity increases the probability of an Ames
League Table [which would rank different brands of cigarettes according to
mutagenicity using the Ames test] appearing. A further unfortunate examination is that,
to date, it is not uncommon for BAT brands to have a higher result [i.e., greater
mutagenicity] than those from the opposition." Minutes from BAT biological
conference held in Southampton, England, 1984, author unknown {1181.06, p. 1}.
B&W/BAT "Despite intense research over the past 25 years, the biological activity of smoke
Private remains a major challenge. In particular, it is not known in quantitative terms whether
Statements the smoke from modern low and ultra-low delivery products has a lower specific
biological activity than that from previous high delivery products. Nor is it clearly
established ... what are the main factors that influence biological [carcinogenic]
activity." Minutes from BAT research conference held in Montebello, Canada, 1982,
prepared by L. C. F. Blackman of BAT R&D {1179.01, p. 4}.
Tobacco "Cigarette smoking has not been scientifically established to be a cause of chronic
Industry's diseases, such as cancer, cardiovascular disease, or emphysema. Nor has it been shown
Public to affect pregnancy outcome adversely." Sheldon Sommers, M.D., scientific director of

(Table continued on next page)

― 21 ―

TABLE 1.1 (continued )

Mouse Skin–Painting Experiments
Summary Both the tobacco industry and the general scientific community have relied on mouse
skin–painting experiments to evaluate the carcinogenicity of elements in tobacco
smoke. Publicly, however, the tobacco industry has criticized the validity of these tests.
Surgeon 1964: "[I]nduction of cancer by a compound in one species does not prove that the test
General's compound would be carcinogenic in another species under similar circumstances.
Reports Therefore, tests for carcinogenicity in animals can provide only supporting evidence for
the carcinogenicity of a given compound or material in man. Nevertheless, any agent
that can produce cancer in an animal is suspected of being carcinogenic in man also"
(3).
"Almost every species that has been adequately tested has proved to be susceptible to
the effect of certain polycyclic aromatic hydrocarbons identified in cigarette smoke and
 designated as carcinogenic on the basis of tests in rodents. Therefore, one can
reasonably postulate that the same polycyclic hydrocarbons may also be carcinogenic in
one or more tissues of man with which they come in contact" (3).
B&W/BAT "Studies in instant [fresh] condensate are showing a biological activity towards mouse-
Research skin of the same order as that of stale condensate, suggesting that the biological activity
Results is not time-dependent. The clear possibility of producing cigarettes with reduced
mouse-skin biological activity therefore becomes of greater importance and a research
solution to the whole problem is more likely." Minutes from BAT research conference
held in Hilton Head Island, South Carolina, 1968, prepared by S. J. Green of BAT
R&D {112.01, p. 1}.
"The meeting agreed that it would be worthwhile to make a cigarette with lower
biological activity on mouse skin painting, provided this did not adversely affect the
position with respect to irritation and other factors. It was recognized that this implied
certain assumptions about the relevance of mouse skin painting." Minutes from BAT
research conference held in Montreal, Canada, 1967, author unknown {1165.02, p. 3}.
B&W/BAT "Historically, bioassay experiments were undertaken by the Industry with the object of
Private clarifying the role of smoke constituents in pulmonary carcinogenesis. The most widely
Statements used of these methods [was] mouse-skin painting. ... (a) In the foreseeable future, say
five years, mouse-skin painting would remain as the ultimate court of appeal on
carcinogenic effects." Minutes from BAT research conference held in Kronberg,
Germany, 1969, prepared by S. J. Green of BAT R&D {1169.01, pp. 2–4}.
Tobacco "Much of the experimental work involves mouse-painting or animal smoke inhalation
Industry's experiments. ... [T ]hese condensates are artificially produced under laboratory
Public conditions and, as such, have little, if any, relation to cigarette smoke as it reaches the
Statements smoker. Further, the results obtained on the skin of mice should not be extrapolated to
the lung tissue of the mouse, or to any other animal species. Certainly such skin results
should not be extrapolated to the human lung." B&W public relations document, 1971
[emphasis in original] {2110.06, pp. 6–7}.

(Table continued on next page)

― 22 ―

TABLE 1.1 (continued )

Environmental Tobacco Smoke (ETS)
Summary During the 1970s and 1980s scientific evidence began to suggest that exposure to
environmental tobacco smoke could cause adverse health effects, such as lung cancer
and cardiovascular disease, in nonsmokers. B&W and BAT responded by privately
attempting to create a product that produced less hazardous sidestream smoke. Publicly,
however, the industry has denied that passive smoking has been proven harmful to
health.
Surgeon 1972: "1. An atmosphere contaminated with tobacco smoke can contribute to the
General's discomfort of many individuals.
Reports
2. The level of carbon monoxide attained in experiments using rooms filled with
tobacco smoke had been shown to be equal, and at times to exceed, the legal limits for
maximum air pollution permitted for ambient air quality. ...
3. Other components of tobacco smoke, such as particulate matter and the oxides of
nitrogen, have been shown in various concentrations to affect adversely animal
pulmonary and cardiac structure and function. The extent of the contribution of these
substances to illness in humans exposed to the concentrations present in an atmosphere
contaminated with tobacco smoke is not presently known" (27).
1982: Epidemiologic studies on ETS and lung cancer "raise the concern that
involuntary smoking may pose a carcinogenic risk to the nonsmoker" (30).
1986: "This review leads to three major conclusions:
1. Involuntary smoking is a cause of disease, including lung cancer, in healthy
nonsmokers.
2. The children of parents who smoke compared with the children of nonsmoking
parents have an increased frequency of respiratory infections, increased respiratory
symptoms, and slightly smaller rates of increase in lung function as the lung matures.
3. The simple separation of smokers and nonsmokers within the same air space may
reduce, but does not eliminate, the exposure of nonsmokers to environmental tobacco
smoke" (31).
B&W/BAT "SIDESTREAM RESEARCH AND DEVELOPMENT. Strategic objectives remain as
Research follows:
Results
1. Develop cigarettes with reduced sidestream yields and/or reduced odour and
irritation.
2. Conduct research to anticipate and refute claims about the health effects of passive
smoking."
Summary of BAT Group Research and Development Centre Activities on Sidestream,
Psychology, circa 1984 {1181.12, p. 1}.
B&W/BAT "We must get hard data both to help counter anti-smoking attacks, and to support the
Private design of future products. ... We should keep within BAT:
Statements
i) animal results on sidestream activity
ii) thoughts on the biological activity [carcinogenicity] of sidestream [smoke]
iii) research findings on the consumer annoyance aspects of environmental [tobacco]
smoke—since these have potential commercial value."
Minutes from BAT research conference held in Montebello, Canada, 1982, prepared by