Brown v. Philip Morris,

Brown v. Philip Morris,

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Individual and representative plaintiffs, Rev. Jesse Brown, on behalf of himself and all other members of the Uptown Coalition for Tobacco Control and Health, and Aaron Eleazer and Pansy Smith, and Ellen Irving, ("Plaintiffs"), and National Association of African Americans for Positive Imagery, on behalf of themselves and all other similarly situated organizations and individuals in the United States ("the Class"), allege the following:


1. For years, and continuing to date, the defendant cigarette and smokeless tobacco manufacturers (the "Tobacco Companies") and their trade associations and public relations and lobbying agents have engaged in a conspiracy to conceal from and to mislead and deceive Black Americans including Plaintiffs and the Class and their participants, regarding the overwhelming evidence that the use of their menthol tobacco products can cause serious and fatal diseases, that the menthol and other dangerous and toxic additives such as coumarin, along with nicotine in menthol cigarette and menthol smokeless tobacco is a toxic substance, and the Tobacco Companies control and manipulate the levels of nicotine in their products through the use of menthol and other additives which are dangerous, hazardous and highly toxic.

2. For many decades the Tobacco Companies and their agents have known that menthol and nicotine contained in their tobacco products are harmful drugs and that Black people smoke menthol cigarettes and use menthol smokeless tobacco because once habituated to these substances they must use the products to satisfy their nicotine and menthol cravings, and that their menthol cigarette and menthol smokeless tobacco are nothing more than delivery devices for the dispensing of nicotine and menthol. The Tobacco Companies and their agents have long known that menthol cigarettes and menthol smokeless tobacco are especially hazardous and harmful to the health of Black users by creating and causing increased risk for cancer, atherosclerotic vascular disease, emphysema, cataracts, adverse pregnancy outcomes, and other diseases and death. The Tobacco Companies and their agents have long known of the means of manufacturing and marketing safer and less harmful tobacco products.

3. As early as in the mid 1950's the Tobacco Companies promised Black Americans as part of the American general public, that they would be responsible for the health of Black tobacco product users, cooperate with those who safeguard public health, conduct objective research about all phases of smoking and health, and disclose everything they knew or would learn about smoking and health. The Tobacco Companies set up so-called "research" organizations, promising to research smoking and health issues objectively. The Tobacco Companies' promises were false.

4. Instead of disclosing their knowledge of the dangers of smoking menthol cigarettes and using menthol smokeless tobacco, the Tobacco Companies willfully and intentionally conspired and combined to engage in a unified fraudulent and discriminating course of conduct and a campaign in restraint of trade including, but not limited to, the following: fraudulently promising to conduct objective research and disclose accurate information as to all aspects of smoking and health as it pertains to Blacks, fraudulently concealing and misrepresenting the toxicity and harmfulness of menthol cigarettes and menthol smokeless tobacco; knowingly disseminating false and misleading information about tobacco use, health, nicotine, menthol, coumarin and intentionally suppressing accurate information about these subjects; intentionally manipulating nicotine content and potency through the use of menthol; targeting deceptive advertising campaigns at Blacks, including teenage children and minors; conspiring not to compete based on claims as to the health or safety of their menthol cigarettes and menthol smokeless tobacco; and, conspiring to suppress the development and marketing of safer menthol cigarettes, less harmful menthol cigarettes, or other less hazardous and alternative menthol and nicotine delivery products.

5. The Tobacco Companies' intentional and racially discriminating fraudulent course of misconduct has resulted in a staggering loss of Life, premature disability, disease, illness and economic loss. The total United States death toll for Blacks in one year alone from cigarette smoking equals the number of American lives lost in battles in the entire war in Vietnam. The Tobacco Companies and their agents have engaged in their fraudulent course of conduct despite their knowledge that vast numbers of new smokers are Black children and teenagers. Of all daily smokers, 82% start before the age of 18. Every day more than a thousand Black American teenagers begin smoking. Cigarette smokers and smokeless tobacco users become addicted and continue to smoke and "chew" due to the Tobacco Companies' decades-long conspiracy of concealment and disinformation, and their use of special additives such as menthol and coumarin while they continue their suppression of safer products.

6. Each year, thousands of Plaintiffs and Class member participants suffer severe injuries and die from use of the Tobacco Companies' products. Each year, Plaintiffs and the Class suffer losses of income in the tens of millions of dollars and spend many more millions for medical and related services for their care and relief from suffering due to diseases caused by menthol cigarette smoking and the use of menthol smokeless tobacco. Each year, the Tobacco Companies reap huge profits from the sale of their products to Plaintiffs and the Class member participants. Each year, the Tobacco Companies spend millions of dollars on advertising designed exclusively to appeal to Blacks. Each year, more Blacks, Plaintiffs, and Class members, including children and teenagers, begin smoking menthol cigarettes and using menthol smokeless tobacco.

7. This is an action to obtain appropriate declaratory and injunctive relief against the Tobacco Companies' continuing illegal and unconstitutional conduct and for any other incidental relief that is equitable, just and proper including punitive damages on behalf of Plaintiffs and the Class of individuals who have been deprived of their civil rights under the law and who have suffered other serious harm as a result of the targeting cammpaign against Blacks. First and foremost, Plaintiffs seek a permanent injunction to require the Tobacco Companies to immediately cease and desist from manufacturing, selling and promoting menthol tobacco products and targeting such defective products to Black Americans and to require their agents to disclose publicly their research on the health consequences to Blacks of menthol tobacco use and the harmfulness of menthol, coumarin, nicotine and other additives; to establish a remedial public education program for Blacks on the health consequences of menthol tobacco use and to establish smoking and smokeless tobacco cessation programs for Black menthol and nicotine-dependent tobacco users.

8. Plaintiffs have discovered that the Tobacco Companies and the other defendants have been engaged in a protracted and willful course of fraudulent conduct in violation of numerous federal laws, and civil rights laws and the federal common law.


9. This Court has federal subject matter jurisdiction over this action pursuant to 42 U.S.C. Sections 1981, 1982, 1983, 1985(3), and 1988 and to 28 U.S.C. Section 1332 (diversity jurisdiction) and because this is an action by individuals and representative Plaintiffs who are citizens of different states than Defendants.

10. This Court also has federal subject matter jurisdiction over this action pursuant to 28 U.S.C. Sections 1331(a), 1337; and 1343(4); 42 U.S.C. Sections 1981, 1982, 1983, 1985(3) and 1988.

11. Venue is proper in this District pursuant to 28 U.S.C. Section 1391 (b), (c); and 42 U.S.C. Section 19. All Defendants did and continue to do business in this District. Defendants made contracts to be performed in whole or in part in this District, and performed such acts as were intended to, and did, result in the sale and distribution of menthol cigarettes and menthol smokeless tobacco in this District. All Defendants caused harm by acts or omissions in the Eastern District of Pennsylvania or caused harm in the Eastern District by acts or omissions outside the District. In addition, the representative Plaintiffs are domiciled in this District and numerous members of the Class reside in this District.




A. Plaintiffs

12. Plaintiff and proposed Class representative Rev. Jesse Brown on behalf of himself and all members of the Uptown Coalition for Tobacco Control and Health ("Uptown") is located at 3536 N. 16th Street, Philadelphia, Pennsylvania 19140. Uptown is an unincorporated association. As such, Rev. Brown and Uptown are a legal entity entitled to bring suit in its own name pursuant to Federal Common Law and as an unincorporated association under the laws and statutes of the Commonwealth of Pennsylvania.

13. Plaintiff and proposed class representative Aaron Eleazer is an individual residing at 309 Myrtle Avenue, West Berlin, NJ 08091.

14. Plaintiff and proposed class representative Pansy Smith is an individual residing at 4834 North Sydenham Street, Philadelphia, PA 19114.

15. Plaintiff and proposed class representative Ellen Irving is an individual residing at 1415 Tristran Circle, Mantua, NJ 08051-2262.

16. Plaintiff and proposed Class representative National Association of African Americans for Positive Imagery is located at 15 Cynwyd Road, P.O. Box 18537, Philadelphia, Pennsylvania 19129. National Association of African Americans for Positive Imagery is a national non-profit 501(c)(3) corporation and as such, the National Association of African Americans for Positive Imagery is a legal entity entitled to bring suit in its own name pursuant to the laws of the United States and the Commonwealth of Pennsylvania.


B. Defendants


17. Defendant Philip Morris, Inc. ("Philip Morris") is a Virginia corporation with its principal place of business at 120 Park Avenue, New York, New York. Philip Morris manufactures, advertises and sells Marlboro, Philip Morris, Merit Cambridge, Benson & Hedges, Virginia Slims, Alpine, Dunhill, English Ovals, Galaxy, Players, Saratoga and Parliament menthol cigarettes throughout the United States, including the Commonwealth of Pennsylvania.

18. Defendant R.J. Reynolds Tobacco Company ("Reynolds") is a New Jersey corporation with its principal place of business at North Main Street, Winston-Salem, North Carolina. Reynolds manufactures, advertises, and sells Camel, Vantage, Now, Doral, Winston, Sterling, Magna, More, Century, Bright Rite, and Salem cigarettes throughout the United States including in the Commonwealth of Pennsylvania.

19. Defendant RJR Nabisco Holdings Corp. ("RJR Nabisco") is a Delaware corporation with its principal place of business at 1301 Avenue of the Americas, New York, New York. RJR Nabisco through a succession of intermediary corporations and holding companies, is the sole shareholder of R.J. Reynolds Tobacco Company ("Reynolds"). Through Reynolds, RJR Nabisco has placed menthol cigarettes into the stream of commerce with the expectation that substantial sales of menthol cigarettes would be made in the United States, including in Pennsylvania. RJR Nabisco has also conducted, by itself or through its agents, subsidiaries, associated companies, or co-conspirators, significant research for Reynolds on the topics of Black smoking habits and attitudes, target marketing and menthol. RJR Nabisco is a participant in the conspiracy described herein and has caused great and irreparable harm to Plaintiffs and the Class and affected commerce in the Commonwealth of Pennsylvania and in the United States.

20. Defendant Brown & Williamson Tobacco Corporation ("Brown & Williamson") is a Delaware corporation with its principal place of business at 1500 Brown & Williamson Tower, Louisville, Kentucky. Brown & Williamson manufacturers, advertises, and sells Kool, Raleigh, Barclay, Belair, Capri, Richland, Laredo, Eli Cutter, and Viceroy cigarettes throughout the United States, including in the Commonwealth of Pennsylvania. As a result of its acquisition of defendant, The American Tobacco Company, Brown & Williamson has succeeded to the liabilities of defendant The American Tobacco Company either by operation of law, or as matter of fact.

21. Defendant B.A.T. Industries ("B.A.T. Industries") is a British corporation with its principal place of business at Windsor House, 50 Victoria St., London. Through a succession of intermediary corporations and holding companies, B.A.T. Industries is the sole shareholder of Brown & Williamson. Through Brown & Williamson, B.A.T. Industries has placed menthol cigarettes into the stream of commerce with the expectation that substantial sales of menthol cigarettes would be made in the United States, including in the Commonwealth of Pennsylvania. B.A.T. Industries has also conducted, by itself or through its agents, subsidiaries, associated companies, or co-conspirators, significant research for Brown & Williamson on the topics of Black smoking habits and attitudes, and disease. On information and belief, Brown & Williamson also sent to England research conducted in the United States on the topics of Black smokers, menthol, coumarin and other additives, smoking, and disease in order to discard or remove sensitive and inculpatory documents from United States jurisdiction, and such documents were subject to B.A.T. Industries' control. B.A.T. Industries is a participant in the conspiracy described herein and has caused great and irreparable harm to Plaintiffs and the Class and affected commerce in the Commonwealth of Pennsylvania and in the United States.

22. The American Tobacco Company ("American") is a Delaware corporation with its principal place of business at 1500 Brown & Williamson Tower, Louisville, KY. American manufactured, marketed and sold Lucky Strike, Pall Mall, Taryton, American, Malibu, Mont Clair, Misty, Iceberg, Silk Cut, Silver Thins, Sobrania, Bull Durham and Carlton cigarettes throughout the United States, including in the Commonwealth of Pennsylvania. In 1994, American was purchased by Brown & Williamson which has succeeded to the liabilities of American.

23. Defendant Lorillard Tobacco Company, Inc. ("Lorillard") is a Delaware corporation with its principal place of business at 1 Park Avenue, New York, New York. Lorillard manufacturers, advertises and sells Old Gold, Kent, Triumph, Satin, Max, Spring, Newport and True cigarettes throughout the United States, including the Commonwealth of Pennsylvania.

24. Defendant Liggett & Myers Tobacco Company ("Liggett") is a Delaware corporation with its principal place of business at 700 West Main Street, Durham, North Carolina. Liggett manufacturers, advertise and sells Chesterfield, Decade, L&M, Pyramid, Dorado, Eve, Stride, Generic and Lark cigarettes throughout the United States, including the Commonwealth of Pennsylvania.

25. Defendant Liggett Group Inc. ("Liggett Group") is a Delaware corporation with its principal place of business at 700 W. Main Street, Durham, North Carolina. Liggett Group through a succession of intermediary corporations and holding companies, is the sole shareholder of Liggett. Through Liggett, Liggett Group has placed menthol cigarettes into the stream of commerce with the expectation that substantial sales of menthol cigarettes would be made in the United States, including in Pennsylvania. Liggett Group has also conducted, by itself or through its agents, subsidiaries, associated companies, or co-conspirators, significant research for Liggett on the topics of Black smoking habits and attitudes, target marketing and menthol. Liggett Group is a participant in the conspiracy described herein and has caused great and irreparable harm to Plaintiffs and the Class and affected commerce in the Commonwealth of Pennsylvania and in the United States.

26. Defendant United States Tobacco Company ("UST") is a Delaware corporation with its principal place of business at 100 West Putnam Avenue, Greenwich Connecticut. UST manufacturers, advertises and sells Sano cigarettes throughout the United States, including in the Commonwealth of Pennsylvania. UST also manufacturers, advertises, and sells approximately 90% of the smokeless tobacco (snuff and chewing tobacco) sold in the United States, including in Pennsylvania, under various brand names including Happy Days, Skoal and Copenhagen.

27. Defendants Philip Morris, RJR Nabisco, Reynolds, Brown & Williamson, BAT Industries, American, Lorillard, Liggett, Liggett Group and UST are sometimes referred to herein collectively as the "Tobacco Companies."

28. Defendant, The Tobacco Institute, Inc. ("Tobacco Institute") New York is a non-profit corporation with its principal place of business at 1875 I Street NW, Suite 800, Washington, D.C. At all relevant times, the Tobacco Institute has operated as a public relations and lobbying arm of the Tobacco Companies, and as an agent and employee of the Tobacco Companies. It has also acted as a facilitating agent in furtherance of the conspiracy of the Tobacco Companies as described in this Second Amended Complaint. In acting as alleged herein, the Tobacco Institute has acted within the course and scope of its agency and employment, and with the consent, permission, and authorization of each of the Tobacco Companies. All actions of the Tobacco Institute were ratified and approved by the officers or managing agents of the Tobacco Companies. The Tobacco Institute has been involved in the conspiracy described in this Second Amended Complaint, and the actions of the Tobacco Institute have affected commerce and caused harm in the Commonwealth of Pennsylvania.

29. Defendant, The Council for Tobacco Research - U.S.A., Inc. ("CTR"), is a New York non-profit corporation with its principal place of business at 110 E. 59th Street, New York, New York. CTR is the successor in interest to the Tobacco Institute Research Committee ("TIRC"). As alleged below, TIRC and CTR were not true "research" organizations but they were established by the Tobacco Companies to carry out their fraudulent course of conduct beginning in January 1954. At all relevant times, TIRC and CTR operated as public relations and lobbying arms of the Tobacco Companies and as agents and employees of the Tobacco Companies. They also acted as facilitating agencies in furtherance of the Tobacco Companies' combination and conspiracy as described in this Second Amended Complaint. In acting as alleged herein, TIRC and CTR acted within the course and scope of their agency employment, and with the consent, permission and authorization of the Tobacco Companies. All actions of the TIRC and CTR alleged were ratified and approved by the officers or managing agents of the Tobacco Companies. TIRC and CTR have been involved continuously in the conspiracy described herein and the actions of the TIRC and CTR have affected commerce and caused harm in the Commonwealth of Pennsylvania.

30. Defendant Smokeless Tobacco Council, Inc. ("STC") is a Connecticut non-profit corporation with its principal place of business at 1627 K Street Northwest, Washington, D.C. STC was ostensibly formed for reasons of supporting objective research into the biological consequences of the use of smokeless tobacco. Like CTR, it was used to further the goals of the conspiracy. Dominated by UST, STC also included as members several small producers of smokeless tobacco and was financially supported by several of the Tobacco Companies, including at least Brown & Williamson, Lorillard and Reynolds. Personnel from the Tobacco Companies actively participated in STC activities. At all relevant times, STC operated as a public relations and lobbying arm of the Tobacco Companies and as agent and employee of the Tobacco Companies. It also acted as a facilitating agency in furtherance of Defendants' combination and conspiracy as described in this Second Amended Complaint. In doing the things alleged, STC acted within the course and scope of its agency and employment, and acted with the consent, permission and authorization of each of the Tobacco Companies. All actions of the STC were ratified and approved by the officers and/or managing agents of the Tobacco Companies. STC has been involved continuously in the conspiracy described and its actions have affected commerce and caused harm in the Commonwealth of Pennsylvania.

31. Defendant Hill & Knowlton, Inc. ("H&K") is an international public relations firm with its principal place of business at 420 Lexington Avenue, New York, New York. H&K played an active and knowing role in the conspiracy complained of, aiding the circulation and/or publication of the false statements of the Tobacco Companies, the Tobacco Institute and the CTR. H&K has been the primary advertising agency responsible for dissemination of the false and misleading information in question, in its capacity as the advertising and public relations agency for the Tobacco Institute, CTR and several of the Tobacco Companies, including Liggett, Philip Morris, Reynolds, American Tobacco and Lorillard. In the course of such representation, H&K aided these defendants in creating and issuing false information and covering up the truth concerning the tobacco industry, the link between smoking and cancer or other health hazards, the harmful nature of smoking, and the true nature of the activities of the TIRC and CTR and their relationship to the industry. H&K has been involved in the Tobacco Companies' wrongful conduct and conspiracy since its creation, and its actions have affected commerce and caused harm in the Commonwealth of Pennsylvania.

32. The Tobacco Companies, along with the Tobacco Institute, CTR, STC and H&R are referred to herein collectively as "Defendants," the "Tobacco Industry", or the "Industry."

33. Each of the Tobacco Companies, the Tobacco Institute, CTR, STC and H&K are sued individually as primary violators and as aiders and abettors. In acting to aid and abet the commission of the unconstitutional, discriminating, fraudulent and other wrongful conduct complained of herein, each Defendant acted with an awareness of the unconstitutional, discriminating, fraudulent and other wrongful conduct. Each Defendant nonetheless rendered substantial assistance or encouragement to the accomplishment of that discrimination and fraud and also was aware of its overall contribution to the conspiracy, scheme, and common course of wrongful conduct alleged herein: the deliberate misrepresentation, concealment and suppression of information regarding the health consequences of smoking menthol cigarettes and the harmful nature of nicotine; the manipulation of nicotine content in menthol cigarettes; through the use of menthol and the deceptive practices relating to "menthol" cigarettes; the restraint of trade in the market for a less dangerous menthol cigarette; and the unconstitutional racially discriminatory targeting of Black Americans with a defective product.

34. Each of the Tobacco Companies, the Tobacco Institute, CTR, and STC and H&K are sued as co-conspirators. The liability of each Defendant arises from the fact that each Defendant entered into an

agreement with the other Defendants and third parities to pursue, and knowingly pursued, the common course of conduct to commit or participate in the commission of all or part of the unlawful acts, plans, schemes, transactions, and artifices to defraud alleged herein: the misrepresentation, concealment and suppression of information regarding the health consequences of smoking menthol cigarettes and of using menthol smokeless tobacco products and the harmful properties of menthol and nicotine; the manipulation of nicotine content in menthol cigarettes through the use of menthol; the deceptive practices relating to menthol cigarettes; the restraint of trade in the market for a less dangerous menthol cigarette; and the unconstitutional racially discriminatory targeting of Black Americans with defective products.

35. As used in this Second Amended Complaint, the term " menthol tobacco products" or "defective products" refers to menthol cigarettes and menthol smokeless tobacco such as menthol chewing tobacco and snuff.


36. Plaintiffs bring this action on behalf of a class of Black American individuals who are similarly situated for the purpose of asserting the claims alleged in this Second Amended Complaint on a common basis. The proposed class is defined as follows: All living Black Americans who have purchased or consumed menthol tobacco products since 1954 (including minors through their legal representatives).

37. This action is brought and may properly be maintained as a class action pursuant to the provisions of Federal Rule of Civil

Procedure 23(a)(1)-(4) and, as appropriate, subparts (b)(1), (b)(2) and/or (b)(3). This action satisfies the numerosity, commonality, typicality, adequacy of representation, predominance and superiority requirements of those provisions.

38. Numerosity -- F.R.C.P. 23(a)(1). The Class is so numerous that joinder of all members is impracticable. Plaintiffs are informed and believe that there are in the U.S. hundreds of thousands of Black individuals who have purchased or consumed menthol tobacco products, and who were targeted by the Defendant in sales and promotional campaigns because of their race and/or ethnicity. Class members may be informed of the pendency of this action either by direct mail and/or published notice.

39. Existence and Predominance Of Common Questions Of Fact and Law -- F.R.C.P.23(a)(2) and 23(b)(3). Common questions of fact and law exist as to all members of the Class and predominate over any questions affecting only individual members of the Class. Common factual legal questions arise from Defendants' common course of conduct which does not vary from Class member to Class member and may be determined without reference to the harm incurred by any particular Class member. The same legal theories and substantive law will apply to the claims of all Class members. These common factual and legal questions include the factual allegations set forth below, and include, but are not limited to the following:

(a) Whether Defendants have targeted Black Americans with menthol tobacco products;

(b) Whether menthol tobacco products are defective products;

(c) Whether menthol cigarette smoking or use of menthol smokeless tobacco has caused disease or harm;

(d) Whether and when Defendants knew that smoking menthol cigarettes and use of menthol smokeless tobacco has caused disease or harm;

(e) Whether Defendants individually and in conspiracy with each other concealed their knowledge that smoking menthol cigarettes and using menthol smokeless tobacco has caused disease or harm.

(f) Whether Defendants intentional targeting of Black Americans with a defective and hazardous product violated the Civil Rights of Black Americans;

(g) Whether menthol is a dangerous and hazardous substance that has caused an unreasonable risk of harm to Plaintiffs;

(h) Whether Defendants have manipulated the levels of menthol and nicotine in their menthol cigarettes and menthol smokeless tobacco for the purpose of causing and sustaining dependence on their products;

(i) Whether Defendants' conduct constitutes violations of Plaintiffs' civil rights under 42 U.S.C. Sections 1981, 1982, 1983 and 1985(3);

(j) Whether Defendants' conduct constitutes violations of Plaintiffs' constitutional and civil rights under the Thirteenth and Fourteenth Amendments to the Constitution of the United States.

(k) Whether the Class is entitled to declaratory and injunctive relief and any incidental equitable relief, and if so, the nature of such equitable relief;

(l) Whether Defendants are liable for incidental punitive or exemplary damages and, if so, how much is necessary and appropriate to punish them for their wanton and reckless conduct and deter others, and fulfil the other policies and purposes of punitive and exemplary damages; and

(m) How any and all equitable relief or incidental punitive damages awarded should be equitably allocated among future programs for the Class.

40. Typicality of Claims -- F.R.C.P. 23(a)(3). Plaintiffs' claims are typical of the claims of the members of the Class, all of which arise out of the same misconduct on the part of Defendants. Defendants' misconduct has affected Plaintiffs and each Class member in substantially the same way. Plaintiffs and each Class member have either purchased, smoked or used the Tobacco Companies' menthol products or have suffered diseases and harm as a result of Defendants' misconduct in targeting. Plaintiffs and each Class member have sustained and will sustain substantial monetary and other damages and irreparable harm arising from Defendants' misconduct arising out of unconstitutional, discriminatory, willful and intentional targeting of Plaintiffs with defective products for such harm and disease which has caused Plaintiffs to expend money for care and other forms of support.

41. Adequacy of Representation -- F.R.C.P.23 (a)(4). Plaintiffs are adequate representatives of the Class because they are typical members of the Class and their interests do not conflict with the interests of the members of the Class they seek to represent. Plaintiffs have retained counsel competent and experienced in the prosecution of complex class actions, consumer actions and civil rights actions. Plaintiffs intend to prosecute this action vigorously, to conclusion, for the benefit of the Class. Plaintiffs’ and their counsel will fairly and adequately protect the interests of the members of the Class.

42. Superiority -- F.R.C.P. 23(B)(3). A class action is superior to other available methods for the fair and efficient adjudication of this litigation. Individual litigation of each Class member's claim is impracticable. Individual litigation would increase the delay and expense to all parties and the court system in resolving the complex legal and factual issues of the case, and would further present the potential for inconsistent or contradictory rulings and judgments. It would be unduly burdensome on the court system if all affected Black Americans in the United States filed and prosecuted a separate civil rights action. By contrast, the class action device presents far fewer management difficulties than multiple lawsuits, and provides the benefit of single adjudication, economies of scale, coordinated discovery and trial and comprehensive supervision by a single court.

43. Class Certification Under F.R.C.P.23 (b)(1). The various claims asserted in this action are additionally or alternatively certifiable under the provisions of Federal Rule of Civil Procedure 23(b)(1). The prosecution of separate actions by the individual members of the Class would create a risk of inconsistent or varying adjudications with respect to individual Class members, thus establishing incompatible standards of conduct for Defendants. This risk is enhanced in that Defendants' conduct is ongoing. Accordingly, individual actions would not settle the issue of whether Defendants' conduct "going forward" is lawful or not. Moreover, the prosecution of separate actions by individual Class members would create a risk of adjudications with respect to them that would, as a practical matter, be dispositive of the interests of the other Class members not parties to such adjudications, or would substantially impair or impede the ability of such non-party Class members to protect their interests.

44. Class Certification Under F.R.C.P.23 (b)(2). The various claims asserted in this action are additionally or alternatively certifiable under the provisions of Federal Rule of Civil Procedure 23(b)(2) because Defendants have acted, or have refused to act, on grounds generally applicable to the Class, thereby injunctive relief or corresponding declaratory relief is appropriate with respect to the Class as a whole. The Second Amended Complaint seeks final injunctive and declaratory relief.


A. The Tobacco Industry’s Target Marketing Plans Against Black Americans

45. Defendants all have for many years targeted Black Americans and Black American communities with specific billboard, magazine and other advertising so as to lure Black Americans into using or smoking their menthol products and to introduce them at an early age to the use of these products. This was and is still achieved by clever and continued targeted advertising campaigns designed solely to depict using and smoking menthol tobacco products as an especially attractive and appealing Lifestyle for Black Americans.

a. Black oriented magazines and newspapers such as Jet, Ebony, Essence, Vibe and the Philadelphia Tribune receive proportionately more revenue from the advertising budgets of the defendants than other consumer publications. In 1993, the tobacco industry spent more than 6 billion dollars on advertising and promotion.

b. In published surveys conducted in major cities across the U.S., it has been shown that low income Black communities have more tobacco billboards than neighboring White communities that are more affluent. In Baltimore, for example, a survey revealed that 20% of the billboards in White communities advertise tobacco whereas 76% of the billboards in Black communities were advertising tobacco products. See M. Quinn, Don't Advertise that Pack At Us, Time Magazine, January 29, 1990.

c. Defendants have also targeted Black Americans in developing "designer" products specifically for the Black American community. In 1989, Reynolds spent a reported 10 million dollars on a brand development project called "Uptown", a purported new brand of high tar, high nicotine, menthol cigarette to be targeted to Black consumers. Public outrage and pressure developed so rapidly that the project was discontinued after an initial attempt to launch promotional campaigns on the first day of Black History month. One of the effects of such targeting campaigns is that Black males are 30% more likely to die from smoking related causes.

d. According to studies done by R.J. Reynolds Tobacco Company in 1970 on the Black population data relative to smoking, Blacks have a higher incidence of smoking than Whites (48% to 41%) and account for more than 11% of the total smoking in the U.S. One fifth of all Blacks smoke Kools and account for one third of all Kool smokers. See R.N. Tidmore, Memo, Black Population Smoking Reference Data (ARD #72-0438), June 30, 1972, by Brown & Williamson.

e. Other studies, however, have shown that the incidence of smoking overall among Blacks was much higher (57%) in 1971 than the data shown by RJR. (See 1980 Black Smoker Study. The language leaves little doubt about the motives of the defendant RJR which characterizes the consumer information as "recommended for identifying the ...strategic opportunities for special marketing plans directed against Blacks.) See confidential memo, Ellen Monahan to Ms. M.D. Harris re: 1982 Black Market Report, November 12, 1982. See also, Brown and Williamson's Black Market Overview, November 29, 1982 which states that while Blacks, account for more than 10% of the total industry volume of sales in 1980, they constitute 61.5% the share of the menthol market. The companies that report also indicate that by far they alone account for more than two-thirds of the Black Market. Those companies are Brown and Williamson and R.J. Reynolds.

45. The Tobacco Companies' attempt to deceive the public, government officials, Plaintiffs, and the Class and their participants, continues. As recently as April, 1994, the Tobacco Companies placed advertisements across the country, denying that cigarette smoking is harmful and making misleading statements about whether the manufacturers deliberately control nicotine levels in their products. An advertisement placed by Philip Morris in newspapers across the country, in April, 1994, for example, represented that the company does not "manipulate" nicotine levels in its cigarettes, and that "Philip Morris does not believe that cigarette smoking is addictive".

46. Reynolds placed a similar advertisement in newspapers across the United States in 1994 stating that "we do not increase the level of nicotine in any of our products in order to addict smokers. Instead of increasing levels in our products, we have in fact worked hard to decrease "tar" and nicotine...." Reynolds advertisement then touted its use of "various techniques that help us reduce the ‘tar’ (and consequently the nicotine) yields of our products".

47. These and other similar statements mislead the consuming public because, as alleged above, the Tobacco Companies use various sophisticated techniques to control and manipulate the nicotine content in their products and the actual nicotine delivery to the cigarette smokers and users of smokeless tobacco.

B. The Tobacco Industry’s Targeting of Menthol Tobacco Products to Black Americans Through Advertising and Other Means

48. Defendants conspired together and pursued courses of conduct individually and separately to target Black Americans with a campaign of deceit and deliberate misrepresentation in order to promote and maintain the sales of their defective, hazardous and dangerous menthol tobacco products, knowing full well the risks of harm to which they were subjecting the Black American consumer.

49. As part of their conspiracy, fraud, and market manipulation, as alleged above, Defendants also have made deceptive advertising, have aggressively marketed defective as well as defectively designed menthol tobacco products, and succeeded in harming massive numbers of Black Americans.

50. In an article entitled "Targeting of Cigarette Advertising in U.S. Magazines 1959-86," investigators from the University of Michigan showed that the Tobacco Companies target Black Americans. As a result Blacks, including all those represented by Plaintiffs and the Class, have higher smoking rates than the general public, and higher disease and death rates.

51. The targeting of the African American Community by the Tobacco Companies is documented in the recently released Report of the Surgeon General entitled, "Tobacco Use Among U.S. Racial/Ethnic Groups" (April 27, 1998), which is the first Surgeon General’s report to focus on tobacco use among U.S. racial/ethnic minority groups:

"One of the best examples of product targeting was the cigarette Uptown, designed by R.J. Reynolds in the 1980s to reach African American smokers (Dagnoli 1989; Simmons 1989; Koeppel 1990; Robinson and Sutton, in press). The attempted introduction of this cigarette is a case study in racial/ethnic product targeting. The characteristics, packaging, and planned promotion of Uptown cigarettes allegedly were designed specifically for African Americans. The menthol formulation of this new brand was designed to compete directly with Lorillard's Newport cigarette, which was one of only three full-price cigarettes to gain market shares in 1989 along with Philip Morris's Marlboro and Virginia Slims cigarettes (Dagnoli 1989), In 1986, Newport was the leading brand of cigarettes among African American smokers, ahead of Brown & Williamson's Kool cigarettes and R.J. Reynolds's Salem cigarettes (Simmons 1989; CDC 1990b). The mentholated Uptown cigarettes were to be packed with their filters down in the belief that African American blue-collar workers often open their cigarettes from the bottom to avoid crushing the filters or having to put unwashed hands on the part of the cigarette that goes into their month (Ramirez 1990). Furthermore, in its statement announcing Uptown cigarettes, the company defined African Americans as the primary market for the new brand. Unlike Newport cigarettes, which were purported to be aimed at all smokers rather than just African Americans, R.J. Reynolds was specific (Dagnoli 1989). "We expect Uptown to appeal most strongly to Black smokers," said Lynn Beasley, vice president of strategic marketing for the company. "Our research led us to believe that Uptown's blend...will be an appealing alternative to smokers currently choosing a competitive brand. We have developed a product based on research that shows that a significant percentage of Black smokers are currently choosing a brand that offers a lighter menthol flavor than our major menthol brand, Salem" (Philadelphia News Observer 1990, p.7).

Uptown cigarettes were to yield 19 milligrams of tar per cigarette, which was the highest level of tar in all of R.J. Reynolds's cigarette brands, with the exception of unfiltered Camel cigarettes. The planned advertisements were to depict African American couples enjoying cigarettes in a sophisticated urban environment with the slogan "Uptown. The place. The Taste" (Koeppel 1990a). The marketing plan for Uptown cigarettes was designed to take advantage of media that were particularly effective in reaching African Americans, including billboards, transit advertising, bus shelters, point-of-purchase signs, and advertisements in racial/ethnic newspapers and magazines.

The introduction of Uptown cigarettes was planned for the first week in February 1990 to coincide with Black History Month activities, including receptions, exhibits, festivals, award ceremonies, and other events highlighting the African American experience. Promoting Uptown cigarettes during this high level of activity--through the distribution of free samples and the underwriting of events--would afford R.J. Reynolds a prime opportunity to promote the new brand (Simmons 1989).

R.J. Reynolds selected Philadelphia as the test market site because of its demographics. In 1990, the city's population was approximately 40 percent African American and was served by several African American newspapers. In addition, African Americans tended to live in distinct neighborhoods that could be reached effectively through billboards and transit advertising. Furthermore, unlike some communities that had mobilized against excessive billboard advertising of alcoholic beverages and tobacco products, Philadelphia's African American community had been quiet in this respect.

In the wake of a firestorm of negative national publicity (see Chapter 5), R.J. Reynolds withdrew its plans to test-market Uptown cigarettes in Philadelphia. The protest against this targeted product involved community members, civic and religious leaders, health professionals, and then-Secretary of Health and Human Services, Dr. Louis W. Sullivan. Ultimately, R.J. Reynolds decided to withdraw Uptown cigarettes from the market permanently.

The same leadership and strategy were used again in Boston in early 1995 and similarly resulted in the withdrawal of a new brand of cigarettes called "X", thought to be targeted to African Americans because of its red, green, and black packaging and the suggestion of the name of noted leader Malcolm X. In this instance, however, both the manufacturer and the distributor denied that the brand was targeted to African Americans or any other racial/ethnic market (Jackson 1995) (see Efforts to Control Tobacco Advertising and Promotion in Chapter 5).

In January, 1997, R.J. Reynolds released a mentholated version of Camel cigarettes. R.J. Reynolds had last marketed a mentholated brand of Camels in 1966 (Tobacco Merchants Association of the United States 1978). Approximately three-fourths of African American smokers smoke mentholated cigarettes (USDHHS 1990) and Camel cigarettes are popular, so the African American community has been concerned that a new menthol brand may escalate smoking among African Americans. In an event similar to that precipitating the withdrawal of Uptown cigarettes, key religious leaders, led by the National Association of African Americans for Positive Imagery, launched a national crusade against the new brand extension of Camel Menthols (Rotzoll 1997)."

52. The above study of the Surgeon General, which reports to the Congress that African Americans suffer the highest death rates from several diseases caused by smoking, provides an extensive history of the targeting of Black consumers by the Defendants:

Appendix. A Brief History of Tobacco Advertising Targeting African Americans


A previous report of the Surgeon General (USDHHS 1994) presented a brief historical perspective of cigarette advertising in the United States focusing on advertising strategies targeting youths. Because targeted marketing to other racial/ethnic groups is a more recent phenomenon and because information about this practice with African Americans is more available, this appendix focuses on advertising to African Americans. This appendix updates the review in the 1994 Surgeon General's report, particularly as it relates to African Americans.

  1. Early Assumptions

A significant proportion of cigarette advertising targeting African Americans was based on the belief that consumer behavior among African Americans differs from that of Whites. In the 1950s, a primary belief of advertising agencies working on cigarette advertising was that status-seeking was a central motivator of African Americans. A survey of "Ebony" readers, published in "Advertising Age, 1950)", showed that "prestige and quality--not cost--are the most important factors to stress when appealing to colored buyers. Because of the psychological considerations involved, Negroes are extremely desirous of being identified as customers who recognize and demand quality merchandise" (p.17).

Another early assumption of advertising agencies targeting African Americans was that advertisements featuring African American college students prefer television commercials for consumer products that included African American models were more effective--or at least more appealing to African Americans--than advertisements portraying Whites. In a 1950 survey of the buying habits and motivations of African Americans, Starch and colleagues found that the majority of Ebony readers preferred advertisements featuring African American models, although about one-third of the African American respondents said that it did not matter whether African American models were used (Advertising Age 1950). In a later study of consumer reactions to the use of White or African American models, 93 White and 88 African American college freshmen in Houston were asked to react to four cigarette advertisements, indicating whether the models were ugly or beautiful, low class or high class, and friendly or unfriendly (22 bipolar scales were presented)(Barban and Cundiff 1964). In general, the cigarette advertisement with White models and the same advertisement with African American models drew similar reactions from Whites and African Americans. In a more recent study, however, African Americans who strongly identified with their culture were more likely to prefer African American models (Whittler 1989). Another recent study has shown that African American college students preferred television commercials for consumer products that included African-American models (Pitts et al. 1989). These findings were replicated recently among African American Chicago youths aged 12-14 years who perceived African American models in cigarette advertisements as more appealing (Huang et al. 1992).

A central belief related to targeted advertising and marketing is the assumption that members of racial/ethnic groups, particularly African Americans and Hispanics, are brand-conscious and brand-loyal consumers. This approach to purchasing is believed to motivate consumers to spend extra money to purchase a product with a recognized brand name or a product that has been used by family members and neighbors for a relatively long period of time. Large multinational brand names often are associated with quality in the immigrants' countries of origin, and purchasing of those brands in the United States may serve as an example of having "arrived" or achieved a sought-after economic status. Other researchers hypothesize that previous consumer experiences and an increase in disposable income produce brand consciousness. For example, Dallaire (1955) argued that "the Negro's desire to improve his lot, his increasing income and the fact that he's been burned so badly and so often in the past with shoddy merchandise makes him a highly brand-conscious consumer" (p.58). Whether brand loyalty is indeed a characteristic of certain racial/ethnic minority groups continues to be debated (Deshpande et al. 1986; Donthu and Cherian 1992); however, this assumption often has been invoked in the design of advertising directed at members of racial/ethnic groups.

Promotional campaigns directed at African Americans and members of other racial/ethnic groups also operate under the assumption that these individuals are more likely than Whites to trust advertising, although most of the studies on which this perception is based have been limited by methodological flaws such as non-random sampling and a small sample size. In a 1961 study of 1,106 African Americans and 537 Whites, about twice as many Whites as African Americans had unfavorable attitudes toward all types of advertising (Bullock 1961). In a 1968 study of 1,846 persons, the 77 African Americans interviewed had the highest proportion (53 percent) of favorable responses to the open-ended question "How do you yourself feel about advertising?" compared with 1,707 Whites (40 percent) (Bauer and Greyser 1968). Eleven years later, Durand and colleagues (1979) interviewed 80 persons and found that African Americans were consistently more trusting of television and newspapers than Whites were, and they relied less on magazine advertisements. Solely and Reid (1983) interviewed a random sample of 185 Atlantans and found that African Americans were more satisfied with the informational value of magazine and television advertising than Whites were and that high-income respondents were the least satisfied with advertising.

Early Targeted Advertising Efforts (1940s-1960s)

Turn-of-the-century advertisements for tobacco products tended to include women, to emphasize female sexuality, and to portray women as dangerous and delightful. Conversely, American Indians and African Americans often were pictured as childlike and unattractive (Mitchell 1992). Tobacco Companies have depicted African Americans in their advertisements since the first Bull Durham advertisements appeared at the turn of the century, but only since the 1940s have they aggressively targeted African Americans as a distinct consumer market.

In the decades that have followed, Tobacco Companies have been described as "bold pioneers in both their use of new media and their targeting of other segments even when controversial" (Pollay et al. 1992, p. 49). In 1942, the advertising agency of the Lorillard Tobacco Company, J. Walter Thompson Company, began to monitor cigarette sales in African American neighborhoods as part of an Old Gold cigarette promotion. (Pollay 1988). By 1948, Philip Morris was running its "no cigarette hangover" campaign in the African American press and in daily newspapers published in languages other than English (Tilde 1948, p. 18). By 1955, several cigarette companies, including Philip Morris, were producing advertising materials targeting African Americans and Hispanics (Printers' Ink 1955). Soon thereafter, Philip Morris began placing point-of-sale materials in English as well as Spanish for the newly repositioned Marlboro cigarettes (Ullman Gravure, Inc. 1957). A decade after tobacco firms first displayed an interest in African American consumers, the firms were described as "leaders among advertisers gunning for a bigger share of the Negro market" (Dallaire 1955, p. 58).

One of the earliest targeting efforts, conducted on behalf of Liggett & Myers' Chesterfield cigarettes, targeted African Americans via advertisements featuring athletes' testimonials and placed in racial/ethnic newspapers and magazines, such as Ebony, Our World, and Tan. The company also launched an extensive point-of-sale advertising campaign featuring African American sports figures (Dallure 1955). The campaign included a series of six documentary films that presented African American achievements. About 3 million people in 500 primarily African American theaters viewed each film. These films also were shown at more than 100 African American colleges, where free cigarette samples were distributed, reaching an estimated 900,000 additional people. The success of this effort led to the filming of 13 five-minute films featuring interviews with African American celebrities (Dallaire 1955).

The 1950s also marked the introduction of mentholated cigarettes. Although a greater proportion of African Americans now smoke mentholated cigarettes compared with members of other racial/ethnic groups (Chapter 2), no evidence exists that the menthol market was initially conceived as having any special appeal to African Americans or other racial/ethnic groups. Mentholated cigarettes are relative newcomers to the tobacco market, and they have been well received by smokers. In 1956, Brown & Williamson's mentholated and then unfiltered Kool cigarette enjoyed an increasing market share that attracted its competitors to introduce mentholated cigarettes with filters. These competitors and their entries included R.J. Reynolds's Salem, Philip Morris's Spud, Ligget & Myers' Oasis, and Lorillard's Newport cigarettes. By the end of 1957, 5 percent of all cigarettes consumed were mentholated, representing "a relatively sharp gain for a fledgling cigarette movement exploring a new taste" (Wootten 1957, p. 22).

By 1959, The American Tobacco Company, the only firm without a mentholated cigarette, was preparing to market a cigarette tentatively called Richmond. The campaign concept allegedly argued that the Richmond cigarette "gives you all of smoking's pleasure, with none of its penalties" (Printers' Inc 1959a, p. 12). Around the same time, Brown & Williamson was ready to test market a second menthol brand, Belair, and was introducing three other menthol brands into the market -- Riviera, Spring, and Alpine (Printers' Ink 1959c). Tobacco Companies also were beginning to use technical jargon to market their menthol products. For example, in 1959, advertising professionals described R.J. Reynolds' advertisements for Salem as "breathlessly reporting 'an amazing new development' in copy that was both opaque and studded with scientific jargon" to inform consumers about the highly porous paper that "air softens every puff". There are, obviously, just no limits to the company's tender regard for the smoker" (Printers' Ink 1959b, p. 8).

In a study of early cigarette advertisements targeting African Americans, investigators compared a complete set of cigarette advertisements from Ebony for the years 1950-1965 with a matched set of advertisements from Life magazine (Pollay et al. 1992). The results, which follow, are important in promoting a better understanding of the principles followed in advertising targeted to African Americans.

By 1965, all six major U.S. cigarette firms had advertised in the pages of Ebony as well as Life. While the cigarette advertising in Life increased over the years, particularly between 1963 and 1965, the amount of such advertising in Ebony more than tripled during the same period. Ebony initially had fewer cigarette advertisements (16 in 1950) than Life (31 in 1950), but a dramatic increase in efforts targeting African Americans soon led Ebony to have more than twice the number of cigarette advertisements (57 in 1962) as Life (28 in 1962)(Pollay 1990; Pollay et al. 1992). An analysis of the page costs indicated that this pattern was neither related to the relative costs of the two magazines nor was it likely related to cigarette firms' joining other firms to offer their products to African Americans through African American-owned media. Although this was a period of general growth for Ebony, "cigarette firms increased their spending and page acquisition even more than the average, keeping themselves out in front of the pack" and making cigarette firms the source of an estimated 6.5 percent of Ebony's total advertising income in 1962 (Pollay et al. 1992, p. 54).

The investigators also found that the manifest race/ethnicity of the models portrayed in cigarette advertisements increased between 1950 and 1965. Out of the 540 cigarette advertisements in Ebony, more than 84.5 percent featured identifiable human models, and more than 90 percent of those used African American models. In the early 1950s, the White endorsers who occasionally appeared in Ebony included physicians who claimed "more doctors smoke Camels" and television and movie stars (Pollay et al. 1992). Since 1958, virtually all models in Ebony's cigarette advertisements have been African American. Yet none of the African American cigarette endorsers appearing in Ebony advertisements have appeared in Life advertisements, not even the widely popular sports stars and musicians.

During the early years of targeted advertising, professional athletes were most often featured in cigarette advertisements. Sports stars were used in advertisements even when the advertising copy was inconsistent with athletics. A Lucky Strike cigarette advertisement in Ebony, for example, referenced scientific tests in 1950 but showed a picture of an African American Olympic athlete. These advertisements sometimes differed from advertisements appearing in media targeting the general population. In 1960, Kent cigarettes illustrated its "scientist's choice" campaign in Ebony with another Olympic champion, not with a scientist as was done in the advertisement placed in Life. Although athletes also appeared in cigarette appeals to the larger public, "cigarette ads aimed at Black readers of Ebony were significantly more likely to use athletes than those aimed at White readers of Life. For 1950-1965, endorsements from athletes were about five times more common in Ebony than in Life" (Pollay et al. 1992, p. 51).

Although most tobacco-producing companies were targeting the African American market through Ebony, these companies advertised significantly fewer cigarette brands in Ebony than in Life (Pollay et al. 1992). Advertising of new products seems to have lagged in African American publications. Whereas advertisements for filtered tobacco products first appeared in Life in 1953 and made up one-half of all cigarette advertising in Life by 1955, advertisements for filtered tobacco products did not appear in Ebony until 1955 and did not represent one-half of its cigarette advertising until 1958, three years later than for Life.

Recent Targeted Advertising Efforts (Late 1960s-1980s)

By the late 1960s with racial/ethnic pride enhanced by the success of the civil rights movement, the nature and appeal of advertising began to change to better tailor the contents of the advertisements to targeted racial/ethnic groups. In an analysis of advertisements for all consumer products in selected issues of Ebony and Life in 1960, Berkman (1963) found that in about two-thirds of the advertisements featuring models, African American models were substituted for White models in advertisements placed in Ebony, although the content of the advertisements was basically identical. The African American models initially featured were predominantly light skinned, according to Berkman (1963), but subsequent studies of all Ebony advertisements between 1952 and 1968 showed that the use of male models with more African American features and hair texture became more common over time, whereas the advertisements continued to use female African American models with Caucasian features (Gitter et al. 1972; Weiss 1972).

Cigarette advertising has changed in similar ways. In the late 1960s Lorillard's advertisements for Kent cigarettes featured an African American model wearing an Afro hairstyle and saying "that's where it's at" (Advertising Age, 1971a, p.20).

Not all cigarette advertisements aimed at African American have been successful at employing meaningful role models or at credibly using street or popular language. One African American marketing professional asserted that neither the Marlboro cowboy nor the Viceroy race car driver was meaningful to most African Americans and that Winston's use of the phrase "How good it is!" in a racial/ethnic advertisement was a "White man's cliche that retired with Jackie Gleason." In contrast, Kool's slogan, "Come all the way up to Kool, America's #1 selling menthol," was lauded for astutely positioning the leader as a sign of upward mobility (Wall 1973, p. 71).

In the 1970s, Liggett & Myers began targeting African American women with advertising for its "arty female oriented" Eve cigarettes by running advertisements with African American models in Black America Magazine, Black Enterprise, Ebony, Essence, Jet, New Lady and Tuesday Magazine (Advertising Age 1971b, p. 24). The next year, Liggett & Myers began promoting L&M cigarettes to African American men and women via advertisements in African American magazines, including Contact, National Scene, and Soul Illustrated (Advertising Age 1971a). In 1974 Kool cigarette advertisements in African American magazines featuring African American models used the copy "Nobody makes cool like Kool" (Advertising Age 1974, p. 76).

During the mid-1970s, products targeted to African Americans began to emerge. For example, R.J. Reynolds created an extra-strong menthol product, Salem Extra, which was advertised as offering "different smokes for different folks." The cigarette was market-tested in Birmingham and New Orleans through outdoor advertisements as well as newspaper and regional magazine advertisements that were supported by sampling. These efforts indicated to the advertising trade that Salem Extra should be targeted to African Americans, along with another extra-strong menthol brand, Super M, which was being tested by The American Tobacco Company in Pittsburgh (O'Connor 1974).

In the late 1970s, Tobacco Companies began using billboards to advertise cigarettes in racial/ethnic minority communities. Over the past two decades, billboards have appeared more frequently in commercially zoned areas and in older, poorer, and otherwise less desirable residential neighborhoods that border major highways and mass transit systems. In surveys of six cities in the late 1980s, Scenic America, a national organization opposed to billboards, found far more billboards advertising tobacco products in minority neighborhoods than in other neighborhoods (McMahon and Taylor 1990). For example, 76.7 percent of advertising messages on billboards in one impoverished African American community in Philadelphia were for alcoholic beverages and tobacco products. In San Francisco, 62 percent of the billboards in predominantly African American neighborhoods advertised cigarettes, compared with 36 percent of all billboards citywide (McMahon and Taylor 1990). According to the Outdoor Advertising Association of America Marketing Division, tobacco companies are the leading outdoor advertisers, accounting for approximately one-third of all billboards (McMahon and Taylor 1990). Furthermore, data for 1988 shows that cigarettes are the most heavily advertised product in outdoor media (CDC 1990a). A study conducted in Columbia, South Carolina, confirmed that African American communities have 2.6 times as many billboards advertising cigarettes as White communities have (Mayberry and Price 1993).

In the late 1970s, cigarette producers and their advertising agencies were becoming very aware of the significance of the African American market, as exemplified by this quotation from a well-known advertising agency: "While Blacks represent only 10.3% of the total U.S. population, they account for 18% of all smokers and 31% of all menthol smokers" (Rosser Reeves Inc. 1979, p.12). As a result tobacco companies have heavily advertised and promoted cigarettes to racial/ethnic minorities, particularly African Americans."

  1. The Tobacco Industry’s Target Marketing Plans Against Black Youth

53. As part of its overall scheme, the Tobacco Industry intentionally replaces thousands of Black tobacco users who die each year by unfairly and illegally targeting its marketing and promotional efforts at young Blacks on the basis of their race. 82% of Black daily smokers in the United States had their first cigarette before the age 18, 62% before the age 16, and 38% before the age of 14. Thus, a Black person who does not begin smoking in childhood or adolescence is unlikely ever to begin. The younger a Black person begins to smoke, the more likely he or she is to become a heavy smoker. 67% of Black children who start smoking in the sixth grade become regular adult smokers and 46% of Black teenagers who start smoking in the eleventh grade become regular adult smokers.

54. Smoking at an earlier age increases the risk of lung cancer and other diseases. Studies have shown that lung cancer mortality is highest among Black adults who began smoking before the age 15.

55. Although young people frequently believe they will not become addicted to nicotine or become long-term users of tobacco products, they often find themselves unable to quit smoking. Among smokers age 12 to 17 years, a 1992 Gallup survey found that 70% said if they had to do it over again, they would not start smoking and 66% said that they want to quit. 51% of the Black teen smokers surveyed had made a serious effort to stop smoking -- but had failed.

56. Cigarette smoking among Black children and teens is on the rise. A 1995 National Institute of Drug Abuse study found that between 1991 and 1994, the proportional increase in smoking rates was greatest among eighth graders, rising by 30%.

57. Cigarettes are among the most promoted consumer products in the United States. The FTC reported to Congress that domestic cigarette advertising and promotional expenditures rose from close to $4 billion in 1990 to more than $6 billion in 1993. Tobacco product brand names, logos, and advertising messages are all-pervasive, appearing on billboards, buses, trains, in magazines and newspapers, on clothing and other goods. The effect is to convey the message to Black people that tobacco use is desirable, socially acceptable, safe, healthy, and prevalent in society. Additionally, Black people buy the most heavily advertised cigarette brands, whereas many Whites buy more generic or value-based cigarette brands that have little or no image-based advertising. The Tobacco Companies, knowing that their advertising appeals to young Black people, continue to use these same marketing techniques to sell their products.

58. Despite these disturbing facts and statistics, the Tobacco Companies maintain that the effect of their pervasive advertising and promotion of menthol cigarettes and menthol smokeless tobacco is limited to maintaining brand loyalty and that it has no role in encouraging adolescents to experiment with tobacco use. In fact, the targeting of the minors is designed to addict minors to menthol and nicotine and thereby replace the thousands of tobacco users who die each year due to use of the Tobacco Companies' products.

59. The Tobacco Companies know that they attract underage consumers to their products. For example, since 1988, Reynolds has used a cartoon character called Joe Camel in its advertising campaign. It has massively disseminated products such as matchbooks, signs, clothing, mugs, and drink can holders advertising Camel menthol cigarettes. The adverting has been effective in attracting Black adolescents. Although Reynolds has knowledge of this fact, it still continues the Joe Camel advertising campaign. As a result of the campaign, the number of Black teenage smokers who smoke Camel menthol cigarettes has risen dramatically. One study has found that Joe Camel is almost as familiar to six-year old Black children as Mickey Mouse, is enticing thousands of teens to smoke that brand, and has caused Camel's popularity with 12-17 years old to surge dramatically. Reynolds knew or willfully disregarded the fact that cartoon characters attract children.

60. The actor who portrayed the "Winston Man" for Reynolds" Winston brand cigarettes testified before Congress: "I was clearly told that young people were the market that we were going after." He further testified that "it was made clear to us that this image was important because kids like to role play, and we were to provide the attractive role models for them to follow...I was told I was a live version of GI Joe......."

61. A Reynolds affiliate studied in detail the motivations of young smokers. A "Youth Target" study was the first of a planned series of research studies into the Lifestyles and value systems of young men and women in the 15-24 age range, the stated purpose of which was to "provide marketers and policy makers with an enriched understanding of the mores and motives of this important emerging adult segment which can be applied to better decision making in regard to products and programs directed at youth." The study focused on the "primary elements of Lifestyles and values among the youth of today." in learning how to market products to children and teens.

62. The Tobacco Companies have also marketed to Blacks by inserting advertisements for their products into movies that have appeal to children. Such movies include, for example, Soul Food, Love Jones, Boyz in the Hood and Menance to Society. A 1983 letter signed by the actor Sylvester Stallone documents one such agreement. Mr. Stallone writes, "I guarantee that I will use Brown & Williamson tobacco products in no less than five feature films. It is my understanding that Brown & Williamson will pay me $500,000.00." Such "stealth" advertisements are particularly disturbing in that the child and adolescent are particularly susceptible to such role models and is wholly unaware that he or she is the subject of the marketing.

63. The recently released Surgeon General’s Report, which is the only single, comprehensive source that summarizes current information on tobacco use among U. S. racial/ethnic groups has concluded that, "Among adolescents, cigarette smoking prevalence increased in the 1990s among African Americans after several years of substantial decline among adolescents of all four racial/ethnic minority groups. This increase is particularly striking among African American youths, who had the greatest decline of the four groups during the 1970s and 1980s."

D. The Concentration In the Tobacco Industry in the United States Facilitates the Targeting of Black Americans with Menthol Tobacco Products.

64. At all relevant times, Philip Morris, Reynolds, Brown & Williamson, Lorillard, Liggett, American and UST together have controlled virtually 100% of the cigarette market in the United States. UST controls approximately 90% of the domestic smokeless tobacco market.

65. The cigarette industry is one of the most profitable markets in the United States, with profit margins estimated to be in the range of 30%. Industry profits are in the billions of dollars annually from domestic sales alone.

66. The unusually concentrated and highly profitable nature of the Industry has facilitated the planning, implementation and funding of a decades-long conspiracy by the Tobacco Companies and their trade associations to target Black American consumers through the use of their preference for menthol taste and aroma in smoking (and use of menthol smokeless tobacco) and nicotine satisfaction.

E. The Nature Of The Tobacco Industry’s Wrongful Conduct and Deception Against Black Americans

67. Defendants have pursued a course of intentional conduct and a conspiracy of deceit and misrepresentation against the Black American public in order to promote and maintain sales of menthol tobacco products, in order to maximize profits derived therefrom.

68. Defendants' conspiracy consists of three strategies: first, they agreed to act in concert to represent falsely to the public that they were selling safe, non-defective products for the use by the Black American public; second, they violated the civil and constitutional rights of the plaintiffs by targeting a concerted campaign to saturate the Black community with a dangerous, defective and hazardous product which they knew would cause harm; and third, they misrepresented, suppressed, distorted and confused the truth about the health dangers of menthol tobacco products, including nicotine.

69. The Tobacco Companies set their plan in motion by creating a joint industry research organization in 1954, TIRC/CTR. Since that time, they have used the credibility gained by false claims of disinterested industry-funded research to suppress and/or misrepresent the material facts to the public. Although knowing of the serious health dangers inherent in the use of their menthol products and the defective and hazardous nature of these products, Defendants have used the above scheme to further their fallacious arguments that there is insufficient "objective" research to determine if use of menthol tobacco products causes increased risk of harm and that menthol tobacco products are not unreasonably dangerous, hazardous or defective.

70. The interconnected strategies of targeting a group of persons based upon their race while misrepresenting their true purpose in order to gain credibility, and then using that credibility better to deceive them about the damages to their health, have been repeated consistently for more than four decades. Defendants have engaged in a continuous conspiracy to deceive Black Americans regarding facts and material information concerning the decision to purchase and use menthol tobacco products and by targeting them as a group for such treatment, Defendants have acted to deprive them of their civil and constitutional rights under the law.

71. Moreover, as internal industry research confirmed the dangers of using menthol tobacco products and nicotine, Defendants' deception rose to a new level; although promising the public that they would make full disclosure of the results of their research, Defendants concealed their own negative health research results from both Black American consumers and public health officials. These research results have still not been voluntarily released. Defendants also have not disclosed to the public that the Tobacco Companies manipulate and control the content and delivery of nicotine in their products, through the use of menthol to create and sustain consumers' dependence on tobacco products. Defendants have further conspired to suppress the development, testing and marketing of safer menthol cigarettes, while fraudulently maintaining that their products are safe or that there are no safer alternatives to their products.

72. The success of the Industry's campaign of deceit, concealment and misinformation has depended, in large part, on Defendants acting in concert. Without the agreement of each of the Tobacco Companies to suppress the truth about the health consequences of using menthol tobacco products, the deception that the joint industry research efforts were objective would be revealed, and the claim that "not enough facts are known" to indict the use of the products would ring hollow. Defendants agreed to come together and to stay together in order to accomplish what would not have otherwise occurred -- the unified and consistent distortion of public information about the use of menthol tobacco products and health.

73. Defendants were aware that unless they took the actions they agreed to take and subsequently took, the volume of their sales of menthol tobacco products would substantially decrease, and accordingly the profits the Tobacco Companies would realize would substantially diminish. Defendants were also aware that Black Americans constitute more than one third of all their profits from the sales of menthol tobacco products and that a loss of this segment of the market would mean that the Tobacco Companies' profits would have been substantially decreased.

  1. The True Health Consequences of Menthol Tobacco Use By Black Americans

The Health Effects of Smoking On Black Americans

74. According to the National Health Interview Survey 1987-90, 47.1 percent of Blacks were reported to be current smokers, compared to 34% percent for Whites.

75. The human tragedy of smoking-caused disease is enormous. Cigarette smoking is the leading cause of premature death for Black Americans in the United States. According to the Federal Centers for Disease Control and Prevention, each year cigarette smoking kills more than 48,000 Black Americans, exceeding the combined deaths caused by automobile accidents, AIDS, alcohol use, use of illegal drugs, homicide, suicide and fires. Smoking-related illnesses account for one of every five deaths of Black Americans each year in the United States.

76. At least 43 of the more than 4,000 different chemicals in the smoke inhaled by persons using the Tobacco Companies’ menthol cigarettes have been determined to be carcinogenic. Cigarette smoking causes more than 85% of all lung cancer, which has now surpassed breast cancer as the primary cause of death from cancer among Black women. Smoking is also linked to cancer of the mouth, larynx, esophagus, stomach, pancreas, uterine cervix, kidney and colon, among others. Cigarette smoking is responsible for at least 30% of all deaths from cancer.

77. Smoking is the cause of more than 80% of deaths of Blacks from pulmonary diseases such as emphysema and bronchitis. These chronic obstructive lung diseases have profound social and economic impact because of the extended disability of their victims.

78. Smoking is also responsible for thousands of deaths annually from cardiovascular disease, including stroke, heart attack, peripheral vascular disease and aortic aneurysm. Smoking is also linked to a large number of other serious illnesses.

79. The health consequences of smoking among Black women are of special concern because of the deleterious effect on reproduction. Smoking reduces fertility, increases the rate of miscarriages and stillbirths, retards uterine fetal growth and results in lower birth weights in Black infants.

The Health Effects of Menthol Tobacco Products on Black Americans.

80. Menthol cigarettes contain nicotine which is an addictive drug. Menthol is a highly toxic substance while nicotine is recognized as an addictive substance by the U.S. Food and Drug Administration ("FDA") and such major medical organizations as the Office of the U.S. Surgeon General, the World Health Organization, the American Medical Association, the American Psychiatric Association, the American Psychological Association, and the Medical Research Council in the United Kingdom. All of these organizations acknowledge tobacco use as a form of drug dependence with severe adverse health consequences.

81. Medical research has shown that the smoking of menthol tobacco products by Black Americans increases the risk of harm due to carcinogenic compounds such as benzopyrenes produced in cigarette smoke containing the by-products of burned menthol, greater than the risk of harm from non-menthol cigarettes.

82. Recent medical research by the Surgeon General has shown that cigarettes containing menthol increase cotinine and serum nicotine levels in Black smokers greater than that produced in non-menthol cigarettes.

83. Surveys have shown that as a result of the targeting of black Americans by the tobacco industry with advertising and other appeals to purchase menthol tobacco products, sixty-six percent (66%) of all Black American smokers smoke menthol cigarettes.

84. Black smokers of menthol cigarettes, although they smoke fewer cigarettes on the average than White smokers of non-menthol cigarettes, have a much higher incidence of lung disease than White smokers.

85. A study of over 11,000 smokers shows that there is an increased risk of lung cancer for Black males who smoke menthol cigarettes.

86. Medical research has shown that use of menthol cigarettes was positively associated with cancer of the pharynx among Black and White males. The same research also shows that Black Americans have a fifty percent (50%) higher incidence of cancer of the pharynx compared to Whites. It is obvious that the higher rate and risk of cancer of the pharynx is the result of the higher percentage of Blacks who smoke mentholated cigarettes.

87. According to the previously cited report of the Surgeon General, brand preferences and use is already delineated by race:

"For example, the top brands preferred by African Americans were Kool, Newport, Salem and Winston, whereas Whites preferred Marlboro, Winston, Salem and Benson & Hedges.

These differences in part reflect the greater use of mentholated cigarettes by African Americans (Cummings et al. 1987 NHIS (Table 32)... Investigators have postulated that the more frequent smoking of menthol cigarettes by African Americans, compared with Whites, contributes to their increased rate of lung cancer (Harris et al. 1993). In a recent experimental study of 12 persons after the amount of menthol injected into experimental cigarettes was increased, the amount of carbon monoxide exhaled by African American smokers also increased (Miller et al. 1994). In a comparison of smoking behavior associated with mentholated cigarettes and regular cigarettes among 29 subjects, McCarthy and colleagues (1995) found higher mean puff volume and higher puff frequency after participants smoked regular cigarettes than after they smoked mentholated cigarettes; however, no differences in mean expired carbon monoxide levels were found. Available data suggest that mentholated cigarettes are not smoked more intensely than regular cigarettes (Jarvik et al. 1994; Miller et al. 1994; McCarthy et al. 1995; Ahijevych et al. 1996). Thus, mentholated cigarettes may promote lung permeability and diffusibility of smoke constituents (Jarvik et al. 1994; McCarthy et al. 1995; Clark et al. 1996a).

88. Smokeless menthol tobacco use can cause oral cancer. The risk of oral cancer increases with increased exposure to smokeless tobacco products that are used. The risk of cheek and gum cancers is nearly 50 times greater in long-term snuff users than in non-users. Snuff and chewing tobacco contain potent carcinogens, including nitrosamine, polynuclear aromatic hydrocarbons and radioactive polonium.

89. Smokeless menthol tobacco use can cause oral leukoplakia, a pre-cancerous lesion of the soft tissue that consists of a White patch or plaque that cannot be scraped off. One study of 117 high school students who were smokeless tobacco users revealed that nearly 50% of these students had oral tissue alterations. There is a 5% chance that oral leukoplakia will transform into malignancies in 5 years. The leukoplakia appears to decrease or resolve upon cessation of smokeless menthol tobacco use.

90. Smokeless menthol tobacco use causes oral cancer and oral leukoplakia and may be associated with an increased risk of cancer of the esophagus. Smokeless menthol tobacco use has been implicated in cancers of the gum, mouth, pharynx and larynx. Snuff use also causes gum recession and is associated with discoloration of teeth and fillings, dental cavities and abrasion of the teeth.

91. Smokeless menthol tobacco contains nicotine. As alleged in paragraph 78 above, every reputable medical organization and society in the world recognizes nicotine as an addictive substance, while menthol is recognized by the scientific community as a highly toxic and hazardous substance.

G. The Tobacco Industry’s Targeting of Black Americans With Menthol Tobacco Products is Part of A Conspiracy to Mislead the American Public about the Harmful Effects of Tobacco Use


92. The Industry conspiracy began as early as the 1950's when cigarette manufacturers were confronted with the publication of several scientific studies which sounded grave warnings about the health hazards of cigarettes. In December, 1953, Dr. Ernest L. Wynder of the Sloan-Kettering Institute published the results of a study in which he painted the shaved backs of mice with cigarette smoke condensate residue. Malignant tumors grew in 44% of the mice in Dr. Wynder's study, providing biological evidence that cigarette smoke caused cancer. The previous year, a British researcher, Dr. Richard Doll, published a statistical analysis showing that lung cancer was more common among people who smoked and that the risk of lung cancer was directly proportional to the number of cigarettes smoked. The widespread reporting of these studies caused what cigarette company officials later called the "Big Scare."

93. The manufacturers responded quickly to the mounting adverse publicity of a link between smoking and cancer. The Chief Executive Officers of the leading cigarette manufacturers met on December 15, 1953, at the Plaza Hotel in Connecticut City. The public relations firm of H&K, which was to play a central role in formulating and executing the industry response, coordinated the meeting and prepared a memorandum summarizing the day's discussions.

94. According to the H&K memorandum, cigarette industry executives viewed the problem as "extremely serious and worthy of drastic action." The document continues: "Officials stated that salesmen in the industry are frantically alarmed and that the decline in tobacco stocks on the stock exchange market has caused grave concern...."

95. The participants in the meeting agreed that a strong public relations response from the manufacturers was necessary. From the beginning, these companies viewed the emerging research linking smoking and cancer as a public relations problem, not a public health issue. According to the H&K memorandum summarizing the meeting:

a. The Chief Executive Officers of all the leading companies, except Liggett, "agreed to go along with a public relations program on the health issue";

b. "They are also emphatic in saying that the entire activity is a long-term, continuing program, since they feel that the problem is one of promoting cigarettes and protecting them from these and other attacks that may be expected in the future"; and

c. "The current plans are for Hill and Knowlton to serve as the operating agency of the companies, hiring all the staff and disbursing all funds."

The Creation of The Tobacco Industry Research Committee.

96. Nine days later, H&K presented a detailed recommendation to the cigarette manufacturers and others. The recommendation recognized the importance of gaining the public trust and avoiding the appearance of bias if the "pro-cigarette" industry strategy was to be successful. According to the memorandum:

"[T]he grave nature of a number of recently highly publicized research reports on the effects of cigarette smoking have confronted the industry with a serious problem of public relations.

It is important that the industry do nothing to appear in the light of being callous to considerations of health or of belittling medical research that goes against cigarettes.

The situation is one of extreme delicacy. There is much at stake and the industry group, in moving into the field of public relations, needs to exercise great care not to add fuel to the flames."

97. As a result of the meeting of December 1953, and the recommendations of H&K, five of the six cigarette manufacturers--Philip Morris, Reynolds, American, Lorillard and Brown & Williamson--agreed to create the Tobacco Industry Research Committee, or TIRC. Liggett joined the industry trade group in 1964, the same year the U.S. Surgeon General's office issued its first report linking cigarette smoking to lung cancer. Also in 1964, TIRC changed its name to the Council for Tobacco Research, or CTR. The Tobacco Companies formed a second trade group, the Tobacco Institute, in 1958.

The TIRC Was Controlled by Hill and Knowlton.

98. As had been proposed at the December 15, 1953 meeting, the Tobacco Companies (except Liggett), through their agent H&K, operated, and effectively controlled TIRC.

99. TIRC was physically established in the Empire State Building in New York City, one floor below the H&K offices. Internal documents confirm that H&K and not independent scientists, actually ran TIRC. A "highly confidential" internal memo reported:

"Since the [TIRC] had no headquarters and no staff, Hill and Knowlton, Inc. was asked to provide a working staff and temporary office space. As a first organizational step, public relations counsel assigned one of its experienced executives W.T. Hoyt to serve as account executive and handle as one of his functions the duties of executive secretary for the [TIRC]."

100. In 1954, 35 staff members of H&K worked full or part time for TIRC. In that year TIRC spent $477,955 on payments to H&K, more than 50% of TIRC's entire budget.

The Industry Promises Unbiased and Truthful Research and Information.

101. Shortly after creating the TIRC, the member cigarette manufacturers made an unambiguous pledge to the public. These Defendants represented that they would, through the TIRC, conduct and report objective and unbiased research regarding smoking and health. When they made this representation, these Defendants knew or should have known that consumers throughout the country, including in Pennsylvania, would consider the representation material to their decisions to purchase and smoke menthol cigarettes. Defendants also knew or should have known that responsible agencies and authorities would fail to take or delay taking public health measures they otherwise would have taken had Defendants fulfilled their pledge. At that time, and continuing to the present, these Defendants knew or should have known that their failure to fulfill the duty they undertook, and other conduct as alleged herein, would result in increased health care costs to health care providers and payers, including Plaintiffs and the Class.

102. On January 4, 1954, the Tobacco Companies (except Liggett) announced the formation and purpose of TIRC, with a full page newspaper advertisement entitled, "A Frank Statement to Cigarette Smokers." The statement appeared in 448 newspapers across the nation, reaching a circulation of 43,245,000 in 258 cities.

103. The "Frank Statement to Cigarette Smokers" stated, in part:

a. "Recent reports on experiments with mice have given wide publicity to a theory that cigarette smoking is in some way linked with lung cancer in human beings."

b. "Although conducted by doctors of professional standing, these experiments are not regarded as conclusive in the field of cancer research."

c. "[T]here is no proof that cigarette smoking is one of the causes [of lung cancer]."

d. "We accept an interest in people's health as a basic responsibility, paramount to every other consideration in our business."

e. "We believe the products we make are not injurious to health."

f. "We always have and always will cooperate closely with those who task it is to safeguard the public health."

g. "We are pledging aid and assistance to the research effort into all phases of tobacco use and health."

h. "For this purpose we are establishing a joint industry group consisting initially of the undersigned. This group will be known as TOBACCO INDUSTRY RESEARCH COMMITTEE."

i. "In charge of the research activities of the Committee will be a scientist of unimpeachable integrity and national repute. In addition there will be an Advisory Board of scientists disinterested in the cigarette industry. A group of distinguished men from medicine, science, and education will be invited to serve on this Board. These scientists will advise the committee on its research activities."

j. "This statement is being issued because we believe the people are entitled to know where we stand on this matter and what we intend to do about it."

104. By the Spring of 1955, the self-defense strategy recommended by H&K and implemented by the industry through the "Frank Statement" was largely successful. H&K reported to TIRC:

a. "[P]rogress has been made....The first 'big scare' continues on the wane."

b. "The research program of the [TIRC] has won wide acceptance in the scientific world as a sincere, valuable and scientific effort. ."

c. "Positive stories are on the ascendancy."

The Tobacco Industry's Knowledge That Smoking is Harmful and Often Lethal.

105. Even before the sponsors of the "Frank Statement" represented that "there is no proof that cigarette smoking is one of the causes" of lung cancer, an industry researcher had reported to the contrary. As early as 1946, Lorillard chemist H.B. Parmele, who later became vice president of research and a member of Lorillard's board of directors, wrote to his company's manufacturing committee:

"Certain scientists and medical authorities have claimed for many years that the use of tobacco contributes to cancer development in susceptible people. Just enough evidence has been presented to justify the possibility of such a presumption."

106. In the years following the 1954 "Frank Statement," and continuing to the present, the Tobacco Companies have repeatedly breached their assumed duty to report objective facts on smoking and health. As evidence mounted both through industry research and truly independent studies that cigarette smoking causes cancer and other diseases, the Tobacco Industry continued publicly to represent that there was no proof of a link between tobacco use and illness. Internal documents show that the truth was very different. The Tobacco Companies knew and acknowledged internally the veracity of scientific evidence of the health hazards of smoking, and at the same time suppressed such evidence when they could, and attacked it when it did appear.

107. Internal cigarette industry documents reveal, for example:

a. A 1956 memorandum from the vice president of Philip Morris Research and Development Department to top executives at the company regarding the advantages of "ventilated cigarettes" stated: "Decreased carbon monoxide and nicotine are related to decreased harm to the circulatory system as a result of smoking....decreased irritation is a partial elimination of a potential cancer hazard."

b. A 1958 memorandum sent to the vice president of research at Philip Morris, who later became a member of its board of directors, from a company researcher stated "the building up that heavy cigarette smoking contributes to lung cancer either along or in association with physical and physiological factors...."

c. A 1961 document presented to the Philip Morris Research and Development Committee by the company's vice president of research and development included a section entitled "Reduction of Carcinogens in Smoke." The document stated in part:

"To achieve this objective will require a major research effort, because carcinogens are found in practically every class of compounds in smoke. This fact prohibits complete solution of the problem by eliminating one or two classes of compounds. The best we can hope for is to reduce a particularly bad class, i.e. the polynuclear hydrocarbons, or phenols.... - Flavor substances and carcinogenic substances come from the same classes, in many instances."

d. A 1963 memorandum to Philip Morris' president and CEO from the company's vice president of research describes a number of classes of compounds in cigarette smoke which are "known carcinogens." The document goes on to describe the link between smoking and bronchitis and emphysema:

"Irritation problems are now receiving greater attention because of the general medical belief that irritation leads to chronic bronchitis and emphysema. These are serious diseases involving millions of people. Emphysema is often fatal either directly or through other respiratory complications. A number of experts have predicted that the cigarette industry ultimately may be in greater trouble in this area than in the lung cancer field."

e. Brown & Williamson and its parent company, British American Tobacco Company ("B.A.T.C.O."), researched the health effects of menthol and of nicotine and were aware early on, as reported at a B.A.T.C.O. Group Research Conference in November 1970, that "nicotine may be implicated in the etiology [cause] of cardiovascular disease...."

f. A 1961 "Confidential" memorandum from a consulting research firm hired by Liggett to do research for the company states:

"There are biologically active materials present in cigarette tobacco. These are:

a) cancer causing

b) cancer promoting

c) poisonous

d) stimulating, pleasurable, and flavorful."

g. A 1963 memorandum from the Liggett consulting research firm states:

"Basically, we accept the inference of a casual relationship between the chemical properties of ingested tobacco smoke and the development of carcinoma, which is suggested by the statistical association shown in the studies of Doll and Hill, Horn, and Donn with some reservations and qualifications and even estimate by how much the incidence of cancer may possibly be reduced if the carcinogenic matter can be diminished, by an appropriate filter, by a given percentage."

108. These internal Liggett documents sharply contrast with the information Liggett provided to the Surgeon General in 1963. Liggett withheld from the Surgeon General the views of its researchers and consultants that the evidence showed cigarette smoking causes human disease. The report Liggett presented to the Surgeon General omitted all of these views. Instead, it focused on alternative causes of disease, such as air pollution, coffee and alcohol consumption, diet, lack of exercise, and genetics. Liggett criticized the known statistical association between smoking and mortality and various diseases as "unreliably conducted" and "inadequately analyzed." The Liggett report concluded that the association between smoking and disease was inconclusive and was in fact due to other factors coincidentally associated with smoking.

109. Philip Morris also concealed from the public its actual views of the research conducted outside the influence of the industry. In a 1971 memorandum, Dr. H. Wakeham, then vice president of research and development, referring to a recent study which found cigarette smoke inhalation caused lung cancer in beagles, stated: "1970 might very properly be called the year of the beagle. Early in the year, the American Cancer Society announced that they had finally demonstrated the formation of lung cancer in beagles by smoke inhalation in the now infamous Auerbach and Hammond study." Although Dr. Wakeham criticized the mice cancer studies, he conceded that "the beagle test was a critical one...for the cigarette causation hypothesis."

110. Dr. Wakeham's memorandum demonstrates Philip Morris' approval of the industry's public dismissals of these independent studies: "the strong opposition of the industry to the beagle test is indicative of a new, more aggressive stance on the part of the industry in the smoking and health controversy. We have gone over from what I have called the 'vigorous denial' approach, the take it on the chin and keep quiet attitude, to the strongly voiced opposition and criticism. I personally think this counter-propaganda is a better stance than the former one."

111. Similarly, B.A.T.C.O.'s internal view of the validity of mouse skin painting experiments differed markedly from the view expressed in public statements. Minutes from a 1969 research conference stated: "Historically, bioassay experiments were undertaken by the industry with the object of clarifying the role of smoke constituents in pulmonary carcinogenesis. The most widely 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." Two years later a Brown & Williamson public relations document stated: "Much of the experimental work involves mouse-painting or animal smoke inhalation experiments....(T)he 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."

The Tobacco Industry's Repeated False Promises to the Public.

112. The Tobacco Companies renewed and repeated the deceptions of the 1954 "Frank Statement to Cigarette Smokers." Reynolds' chairman, Bowman Gray, told Congress in 1964: "If it is proven that cigarettes are harmful, we want to do something about it regardless of what somebody else tells us to do. And we would do our level best. It's only human."

113. Another advertisement co-sponsored by TIRC and the Tobacco Institute called "A Statement about Tobacco and Health" stated:

"We recognize that we have a special responsibility to the public -- to help scientists determine the facts about tobacco and health, and about certain diseases that have been associated with tobacco use. We accepted this responsibility in 1954 by establishing the TIRC, which provides research grants to independent scientists. We pledge continued support of this program of research until the facts are known. We shall continue all possible efforts to bring the facts to light."

114. The companies made similar representations in 1970 when its lobbying group, the Tobacco Institute, placed a number of advertisements similar to the 1954 "Frank Statement." One advertisement stated in part:

a. "After millions of dollars and over 20 years of research: The question about smoking and health is still a question."

b. "In the interest of absolute objectivity, the tobacco industry has supported totally independent research efforts with completely non-restrictive funding."

c. "In 1954, the Industry established what is now known as CTR, the Council for Tobacco Research -- USA, to provide financial support for research by independent scientists into all phases of tobacco use and health. Completely autonomous, CTR's research activity is directed by a board of ten scientists and physicians who retain their affiliations with their respective universities and institutions. This board has full authority and responsibility for policy, development and direction of the research effort."

d. "The findings are not secret."

115. Another advertisement in 1970 stated that the industry "believes the American public is entitled to complete, authenticated information about cigarette smoking and health....The tobacco industry recognizes and accepts a responsibility to promote the progress of independent scientific research in the field of tobacco and health."

116. In 1972, Tobacco Institute president Horace Kornegay testified before Congress and stated: "(T)he cigarette industry is vitally concerned or more so than any other group in determining whether cigarette smoking causes human disease....That is why the entire tobacco industry...since 1954 has committed a total of $40 million for smoking and health research through grants to independent scientists and institutions."

117. In March of 1983, Sheldon Sommers, M.D., scientific director of CTR, testified before Congress: "Cigarette smoking has not been scientifically established to be a cause of chronic diseases, such as cancer, cardiovascular disease, or emphysema. Nor has it been shown to affect pregnancy outcome adversely."

118. In 1984, Reynolds placed an advertisement in the New York Times stating: "Studies which conclude that smoking causes disease have regularly ignored significant evidence to the contrary.

119. In response to what he described as "a number of charges...leveled against the tobacco industry generally, and Philip Morris specifically, "William Campbell, president of Philip Morris, told the Waxman Subcommittee in April 1994: "...our consumers are being misled and when that happens Philip Morris has and will continue to speak out loudly and clearly. Our consumers deserve to know the truth..."

120. Each of Defendants' representations to the public about sponsoring independent objective research and bringing the truth to light were false and deceptive. These misrepresentations were made to gain the trust of the public to better distort and suppress substantive and accurate information about smoking and health.

Hiding The Truth: The "Gentleman's Agreement".

121. The Tobacco Companies' financial success depended upon their collective agreement not to reveal to the public the true nature of TIRC, and later CTR, and not to disclose adverse information on smoking and health. In 1968, a memorandum addressed to the CEO of Liggett regarding a meeting of the research directors of the six cigarette manufacturers stated on the topic of smoking and health, "a general feeling that an industry approach as opposed to an individual company approach was highly desirable."

122. Each company agreed not to perform research on smoking and health on their own. This agreement was referred to as the "Gentleman's Agreement." A 1968 internal Philip Morris draft memorandum entitled "Need for Biological Research by Philip Morris Research and Development," and prepared by the company's vice president of research and development, states: "We have reason to believe that in spite of the gentlemans (sic) agreement for the tobacco industry in previous years that at least some of the major companies have been increasing biological studies with their own facilities."

123. As indicated by the 1968 "Gentleman's Agreement" memorandum, it was believed within the industry that individual companies were performing certain research on their own, in addition to the joint industry research. But the fundamental understanding and agreement remained intact: that harmful information and activities would be restrained, suppressed, and concealed. This included restraining, concealing, and suppressing research on the health effects of smoking and restraining, concealing, and suppressing the research and marketing of safer menthol cigarettes.

The Tobacco Industry's Suppression and Concealment of Industry-Sponsored Research.

The CTR: A Sham Front For The Industry

124. The joint industry research efforts undertaken through TIRC, and later, through CTR, were not disinterested or objective. Rather, they were designed and used to promote favorable research, to suppress negative research where possible, and to attack negative research where it could not be suppressed, all in order to convince the public, including participants and beneficiaries of Plaintiffs and the Class, that the "case against smoking is not closed."

125. A 1974 report to the CEO of Lorillard from a research executive described CTR's scientific projects as "hav(ing) not been selected against specific scientific goals, but rather for various purposes such as public relations, political relations, position for litigation, etc. Thus, it seems obvious that reviews of such programs for scientific relevance and merit in the smoking and health field are not likely to produce high ratings."

126. A 1972 internal document from a Tobacco Institute official to the group's president described the importance of using joint industry research to maintain public doubt about the link between smoking and disease:

"For nearly twenty years, this industry has employed a single strategy to defend itself on three major fronts -- litigation, politics, and public opinion. While the strategy was brilliantly conceived and executed over the years helping us win important battles, it is only fair to say that it is not - nor was it ever intended to be - a vehicle for victory. On the contrary, it has always been a holding strategy, consisting of -- creating doubt about the health charge without actually denying it -- advocating the public's right to smoke, without actually urging them to take up the practice -- encouraging objective scientific research as the only way to resolve the question of the health hazard.

As an industry, therefore, we are committed to an ill-defined middle ground which is articulated by variations on the theme that, 'the case is not proved.'

In the cigarette controversy, the public -- especially those who are present and potential supporters (e.g. tobacco state congressmen and heavy smokers) -- must perceive, understand, and believe in evidence to sustain their opinions that smoking may not be the causal factor.

As things stand, we supply them with too little in the way of ready-made credible alternatives."

127. A 1978 memo addressed to the CTR file from a Philip Morris official characterized CTR as "an industry 'shield'." The memorandum goes on to state: "(T)he public relations value of CTR must be considered and continued.... It is extremely important that the industry continue to spend their dollars on research to show that we don't agree that the case against smoking is closed....There is a 'CTR basket' which must be maintained for 'PR' purposes...."

128. In 1993, a former 24-year employee of CTR confirmed publicly that the joint industry research efforts were not objective: "When CTR researchers found out that cigarettes were bad and it was better not to smoke we didn't publicize that." "The CTR is just a lobbying thing. We were lobbying for cigarettes."

129. The role and purpose of TIRC and CTR in the Tobacco Companies' strategy was to seek to use the public's trust to propagate "pro-cigarette" propaganda. An industry official described in his personal notes a meeting which included high level officials from various cigarette manufacturers: "CTR is the best and cheapest insurance the tobacco industry can buy and without it the industry would have to invent CTR or would be dead."

130. Nonetheless, in its annual reports published between 1985 and 1992, CTR stated that its scientific advisory board funded peer-reviewed research projects, "judging them solely on the basis of scientific merit and relevance." In 1994, Dr. James F. Glenn, CEO of CTR, submitted testimony to the Waxman Subcommittee:

a. "The council...sponsors research into questions of tobacco use and health and makes the results available to the public."

b. "Council grantees are assured complete scientific freedom in conducting their studies....Publication of research results is encouraged in all instances."

131. CTR-sponsored research projects were directed away from research that might add to the evidence against smoking. When CTR-sponsored research did produce unfavorable results, however, the information was distorted or simply suppressed. For example, Dr. Freddy Homburger, a researcher in Cambridge, Massachusetts, undertook a study of smoke exposure on hamsters. According to Dr. Homburger, he received a grant from CTR that was changed halfway through the study to a contract "so they could control publication -- they were quite open about that." Dr. Homburger has testified that when the study was completed in 1974, the scientific director of CTR and CTR lawyer "didn't want us to call anything cancer" and that they threatened Dr. Homburger with "never get(ting) a penny more" if his paper were published without deleting the word cancer.

132. An internal CTR document describes how Dr. Homburger attempted to call a press conference about the incident and how CTR stopped it:

He...was to tell the press that the tobacco industry was attempting to suppress important scientific information about the harmful effects of smoking. He was going to point specifically at CTR. I arranged later that evening for it to be canceled.

Homburger was given a cordial welcome and nicely hastened (sic) out the door.

P.S. I doubt if you or Tom will want to retain this note."

133. Another mechanism the CTR used to suppress research results that implicated smoking in disease was to selectively involve lawyers, and then invoke the attorney/client privilege to prevent the disclosure of harmful information. The CTR used the term "special projects" to mean a project that carried a risk of a negative result that might have to be suppressed. Tobacco Industry lawyers selected and monitored "special projects" to prevent disclosure. One Philip Morris official characterized CTR as a "front" for performing "special projects."

134. Notes prepared at a 1981 meeting of the Tobacco Companies' Committee of General Counsel state:

"When we started the CTR Special Projects, the idea was that the scientific director of CTR would review a project. If he liked it, it was a CTR special project. If he did not like it, then it became a lawyers' special project....we were afraid of discovery for FTC and Aviado, we wanted to protect it under the lawyers. We did not want it out in the open."

The "Deadwood" Method of Hiding Negative Research.

135. At least one company used similar tactics to suppress and avoid disclosure of its internal research on smoking and disease. At a time when the company was resisting discovery in a number of personal injury lawsuits, Brown & Williamson's general counsel, K. J. Kendrick Wells, recommended, in a memorandum dated January 17, 1985, that much of the company's biological research be declared "deadwood" and shipped to England. He recommended that no notes, memos or lists be made about these documents. Wells stated, "I had marked certain of the document references with an X....which I suggested were deadwood in the behavioral and biological studies area. I said that the "B" series are "Janus" series studies and should also be considered as deadwood." ("Janus" was a name of a project that attempted to isolate and remove the harmful elements of tobacco.) Wells further recommended that the research, development and engineering department also should undertake "to remove the deadwood from the files."

136. The recent sworn statements of Brown & Williamson's former Chief of Research, Jeffrey Wigand, confirm that Brown & Williamson's Wells concealed sensitive documents. Wigand stated that Wells sent sensitive research documents to London to avoid production in litigation, stamped scientific documents "attorney/client, work product," even though the documents were not specifically created for litigation, and edited and suppressed the minutes of scientific meetings to remove references to topics which might be the subject of litigation.

      1. The Mouse House Massacre

137. In the 1960's, Reynolds established a facility in Winston-Salem, North Carolina, to research the health effects of smoking using mice. In the facility nicknamed the "Mouse House," Reynolds scientists researched a number of specific areas, including studies of the actual mechanism whereby smoking causes emphysema in the lungs. The Reynolds lab made significant progress in understanding the mechanism. Despite this progress, Reynolds disbanded the entire research division in one day in 1970 and fired all 26 scientists without notice.

138. Several months before the 1970 closure and firings, Reynolds attorneys collected dozens of research notebooks from the lab's scientists. The notebooks have still not been voluntarily disclosed. One of the researchers later stated about Reynolds executives and lawyers that "they like to take the position that you can't prove harm because you don't know mechanism....And sitting right under their noses is evidence of mechanism (.) What are they going to do with this stuff? They decided to kill it."

139. Internally, a Reynolds-commissioned report favorably described the Mouse House work as "the more important of the smoking and health research effort because it comes close to determining what was thought to be the underlying pathology of emphysema." Defendants have not disclosed any of the work done at the "Mouse House" to the public.

The Tobacco Companies Knew How But Refrained From Making A "Safer" Menthol Cigarette

140. Several Tobacco Companies' biological research appears to have been directed toward developing a cigarette with reduced health risks. These companies performed research that involved dividing cigarette smoke into its different chemical constituents, or "fractions," to discover which part of the cigarette smoke caused disease. Several companies were successful in discovering which specific constituents in tobacco smoke were carcinogens or were linked to other diseases. These companies kept the research secret and never reported it to the public. A number of companies also successfully removed certain harmful constituents from cigarette smoke and developed prototype cigarettes with reduced health effects. These products were never marketed.

141. A memorandum written by an attorney at the firm of Shook, Hardy & Bacon, long-time lawyers for the Tobacco Industry, articulated the industry-wide position regarding the issue of a safer cigarette. The 1987 memorandum, referring to the marketing by Reynolds of a smokeless cigarette, Premier, stated that the smokeless cigarette could "have significant effects on the tobacco industry's joint defense efforts" and that "(t) he industry position has always been that there is no alternative design for a cigarette as we know them." The attorney also noted "(U)nfortunately, the Reynolds announcement...seriously undercuts this component of (the) industry's defense."

142. As early as 1958, a memorandum from a Philip Morris researcher to the company's vice president of research and development proposed that the company attempt to make a safer cigarette that could enable it to "jump on the other side of the fence...on the issue of tobacco smoking and health ..."

143. Philip Morris did perform the research and development of such a product. However, the company never released the research and never informed the public that existing cigarettes were not safe or that a safer cigarette was possible. A 1964 Philip Morris research and development presentation to its board of directors stated:

"Two years ago, in anticipation of a health crisis to be precipitated by the Smoking and Health Report of the Surgeon General's committee, we undertook to develop a physiologically superior cigarette.

(W)e put together a charcoal filter product with performance superior to anything in the market place. That product was known as Saratoga. Physiologically it was an outstanding cigarette. Unfortunately then after much discussion we decided not to tell the physiological story which might have appealed to a health conscious segment of the market. The product as test-marketed didn't have good 'taste' and consequently was unacceptable to the public ignorant of its physiological superiority."

144. The research and development department at Philip Morris nonetheless viewed continued research into safer cigarettes as necessary to compete in the event that another cigarette company marketed a safer cigarette. The presentation to the Philip Morris Board of Directors continued: "The Research and Development Department is working to establish a strong technological base with both defensive and offensive capabilities in the smoking and health situation. Our philosophy is not to start a war, but if war comes, we aim to fight well and to win."

145. Liggett and/or Liggett Group also developed a safer cigarette. Company researchers believed that they had discovered which cigarette smoke constituents were carcinogens and found a way to remove them. Despite Liggett and/or Liggett Group officials' belief that the product was commercially marketable, the companies never promoted the safer cigarette and suppressed the research that led to its development.

146. Liggett and/or Liggett Group contracted with a consulting firm to repeat the smoke condensate studies of mice performed by Dr. Wynder. The consulting firm confirmed Dr. Wynder's findings, and, as a result, in 1968, Liggett and/or Liggett Group began "a tobacco additive program designed to reduce or eliminate the tumorigenic activity of cigarette smoke."

147. By 1979, Liggett and/or Liggett Group had declared the work a success. Company documents state: "Briefly, as a result of 20 years effort in cooperation with (the consulting firm), we have developed a cigarette system which produces smoke of reduced biological activity....(T)here can be no argument that the use of the additives has resulted in a product with lower carcinogenic effects."

148. Liggett and/or Liggett Group never marketed the safer cigarette, a product called "XA," and ultimately abandoned the XA project. On information and belief, Liggett and/or Liggett Group did so for two reasons. First, disclosing the feasibility of a safer cigarette would imply that all existing cigarettes were not safe. Second, Philip Morris apparently threatened Liggett and/or Liggett Group with retaliation if Liggett and/or Liggett Group violated the industry agreement not to disclose negative information on smoking and health. Liggett and/or Liggett Group's assistant research director, Dr. James Mold, reported that Liggett and/or Liggett Group's President said that he was "told by someone in the Philip Morris Company that if we tried to market such a product that they would clobber us."

149. During the XA project, Liggett and/or Liggett Group attempted to insulate the research by the use of company lawyers. According to Dr. Mold, after 1975, "all meetings that we had regarding this project were to be attended by a lawyer.......All paper that was generated...(was) to be directed to the law Department." Dr. Mold stated that lawyers even collected all the notes after each meeting.

150. Dr. Mold stated that despite its significance, the company lawyers not only ultimately succeeded in stopping the project, but also ordered him not to publish the results of the research that led to the safer cigarette. The consulting firm published only an abstract of the paper, modified by the legal department, without Dr. Mold's name.

151. When asked why Liggett and/or Liggett Group never marketed the safer XA cigarette, Dr. Mold explained: "(Management circles) felt that such a cigarette if put on the market would seriously indict them for having sold other types of cigarettes that didn't contain this, for example, or that they were carrying on this biological research at the same time saying it meant nothing."

152. Liggett and/or Liggett Group had also obtained a patent for the process it had discovered to product its safer cigarette. The patent application described the reduction in cancer in mouse studies, prompting stories in the media that Liggett and/or Liggett Group was the first cigarette company to admit that smoking causes cancer. Liggett and/or Liggett Group responded by issuing a press release it called a "Liggettgram" which stated:

"Liggett and the cigarette industry continue to deny, as they have consistently, that any conclusions can be drawn relating such test results on mice in laboratories to cancer in human beings. It has never been established that smoking is a cause of human cancer. The laboratory experiments reported in the patent were conducted for Liggett by an independent researcher. The Life Sciences Division of Arthur D. Little, Inc."

153. At the time Liggett and/or Liggett Group made this statement, Dr. Mold estimates that Liggett and/or Liggett Group had spent a total of $10 million on research involving mice, in part to develop the safer XA cigarette. Liggett and/or Liggett Group's internal reports on the benefit of the XA, and the absence of increased risk of harm from the additives used, specifically used animal studies as reliable indicators of the health effect of the product on humans.

154. Despite overwhelming scientific evidence and the confirmation of this evidence by their own internal research, the Tobacco Companies and their trade associations continue to this day to repeat over and over, in a unified stance, that there is no casual connection between cigarette smoking and adverse health effects. These representations are misleading, deceptive and untrue. They rest at the heart of the Tobacco Industry's ongoing conspiracy to market and profit from a product it knows is deadly.

The Tobacco Industry's Interest in the Nicotine Content in Their Products

155. A chronology of the Industry's research and development activities confirms that the Tobacco companies understood early on that nicotine was the key to their success. The Tobacco Companies conducted extensive research establishing that smokers require a certain level of nicotine from their cigarettes and that tobacco "satisfaction" is attributable to nicotine's effect on the body after absorption.

156. Philip Morris internal reports from 1972 and 1978 characterize the role of nicotine in tobacco use: "The cigarette should be conceived not as a product but as a package. The product is nicotine....Think of the cigarette pack as a storage container for a day's supply of nicotine....Think of the cigarette as a dispenser for a dose unit of nicotine."

157. Documents from a B.A.T.C.O. study called Project Hippo, uncovered only in May 1994, show that as far back as 1961, this cigarette company was actively studying the physiological and pharmacological effects of nicotine. Project Hippo reports were circulated to other U.S. cigarette manufacturers and to TIRC, demonstrating that at least some of the Industry's nicotine research was shared. B.A.T.C.O. sent the reports to officials at Brown & Williamson and Reynolds, and circulated a copy to TIRC with a request that TIRC "consider whether it would help the U.S. industry for these reports to be passed on to the Surgeon General's Committee."

158. Similarly, a Reynolds-MacDonald Marketing Summary Report from 1983 concluded that the primary reason people smoke "is probably the physiological satisfaction provided by the nicotine level of the product."

159. To this day, the Tobacco Companies have concealed from the public and public health officials their extensive knowledge of the harmful properties of nicotine and menthol and their critical role in smoking. As recently as December 1995, the Wall Street Journal reported on an internal Philip Morris draft document analyzing the competitive market for nicotine products for the years 1990-1992. The report describes the importance of nicotine:

"Different people smoke for different reasons. But the primary reason is to deliver nicotine into their bodies....It is a physiologically active, nitrogen containing substance. Similar organic chemicals include nicotine, quinine, cocaine, atropine and morphine. While each of these substances can be used to affect human physiology, nicotine has a particularly broad range of influence. During the smoking act, nicotine is inhaled into the lungs in smoke, enters the bloodstream and travels to the brain in about eight to ten seconds."

160. The Tobacco Companies have long understood that reducing or eliminating nicotine from their products would hurt sales. As one company researcher wrote in a 1978 report to Philip Morris executives: "If the industry's introduction of acceptable low-nicotine products does make it easier for dedicated smokers to quit, then the wisdom of the introduction is open to debate." Instead, the Industry attempted to develop ostensibly safer ways of delivering adequate doses of nicotine to satisfy the smoker such as adding more nicotine and masking its harsh taste with higher and higher amounts of menthol.

161. Some members of the Industry studied artificial nicotine or nicotine analogues that would have the psychopharmacological properties of nicotine without its dangerous effects on the heart. Philip Morris hired Dr. DeNoble, in part, to research and develop a nicotine analogue.

162. DeNoble did discover such an analogue, but Philip Morris chose to halt his effort to determine whether the nicotine analogue could be used to make a safer cigarette. On information and belief, Philip Morris decided not to pursue nicotine analogues in order to avoid risking adverse publicity and compromising the industry's consistent position that there was no alternative design for cigarettes.

163. Brown & Wiliamson also understood that nicotine was the essential ingredient in maintaining tobacco sales. The company attempted to develop a "safer" cigarette which internal documents described as "a nicotine delivery device." By the end of the 1970's, however, Brown & Williamson, in a pattern that was repeated throughout the industry, closed its research labs and halted all work on a safer cigarette.

164. Reynolds' efforts to develop a safer cigarette also focused on delivering nicotine to the consumer without the other harmful constituents of tobacco smoke. In the late 1980's, Reynolds developed and test marketed Premier, a virtually tobacco-free cigarette which was, in essence, a nicotine delivery system.

165. The Tobacco Companies have misrepresented the role of nicotine in tobacco use to the public, continuing to claim that nicotine is important in cigarettes for taste and "mouth-feel." However, Tobacco Companies have actually concentrated on developing technologies to mask the acrid flavor of increased levels of nicotine in cigarettes through the use of menthol as an additive.

The Tobacco Industry's Control and Manipulation of Menthol and Nicotine Levels In Their Products

166. The Tobacco Companies have developed and used other highly sophisticated technologies designed to deliver nicotine in precisely calculated quantities. The Tobacco Companies use menthol as a means to mask the harsh flavor of high nicotine content in cigarettes and adjust high the precise amounts of menthol to compensate for higher nicotine content. They also control the nicotine content of their products through selective breeding and cultivation of plants for nicotine content and careful tobacco leaf purchasing plans. The Tobacco Companies have learned to control nicotine delivery (i.e. the amount absorbed by the smoker) with other various design and manufacturing techniques using menthol as a masking additive.

167. The story of Brown & Williamson's development of a new tobacco plant dubbed "Y-1" is one of the more egregious examples of the Tobacco Companies' concealment of its control and manipulation of the nicotine levels in their product.

168. On June 21, 1994, Dr. David A. Kessler, Commissioner of the FDA, told the Waxman Subcommittee that FDA investigators had discovered that Brown & Williamson had developed a high nicotine tobacco plant, which the company called "Y-1." This discovery followed Brown & Williamson's flat denial to the FDA on May 3, 1994, that it had engaged in "any breeding of tobacco for high or low nicotine levels."

169. When four FDA investigators visited the Brown & Williamson plant in Macon, Georgia on May 3, 1994, Brown & Williamson officials denied that the company was involved in breeding tobacco for specific nicotine levels. Only after the FDA learned of the development of Y-1 in its investigation and confronted company officials with the evidence did the company admit that it was growing and using the high-nicotine plant.

170. In fact, in a decade-long project, Brown & Williamson secretly developed a genetically engineered tobacco plant with a nicotine content more than twice the average found naturally in flue-cured tobacco. Brown & Williamson took out a Brazilian patent for the new plant, which was printed in Portuguese. Brown & Williamson and a Brazilian sister company, Souza Cruz Overseas, grew Y-1 in Brazil and shipped it to the United States where it was used in five Brown & Williamson cigarette brands, including three labeled "light." When the company's deception was uncovered, company officials admitted that close to four million pounds of Y-1 were stored in company warehouses in the United States.

171. As part of its cover-up, Brown & Williamson even went so far as to instruct the DNA Plant Technology Corporation of Oakland, California, which had developed Y-1, to tell FDA investigators that Y-1 had "never (been) commercialized." Only after the FDA discovered two United States Customs Service invoices indicating that "more than a half-million pounds" of Y-1 tobacco had been shipped to Brown & Williamson on September 21, 1992, did the company admit that it had developed the high-nicotine tobacco.

172. Y-1 is one example of an overall trend among the Tobacco Companies to increase the nicotine content of their tobacco products. American tobaccos of all types have undergone cumulative increases in total nicotine levels since the 1950's. Nicotine levels in the most widely grown American tobaccos increased between 10-50% between 1955 and 1980. On information and belief, this increase is the result of the Tobacco Companies' active and controlling participation in efforts to breed and cultivate tobacco for high nicotine levels.

173. The nicotine content of the raw tobacco is not the only variable manipulated by the Tobacco Companies to deliver a pharmacologically active dose of nicotine to the smoker. Cigarettes are not simply cut tobacco rolled into a paper tube. Modern cigarettes are painstakingly designed and manufactured to control nicotine delivery to the smoker.

174. For example, cigarette manufacturers add several ammonia compounds during the manufacturing process which increase the delivery of nicotine and almost double the nicotine transfer efficiency of cigarettes. In 1995, Brown & Williamson publicly denied that the use of ammonia in the processing of tobacco increases the amount of nicotine absorbed by the smoker. Nevertheless, the company's own internal documents reveal that it and the other cigarette manufacturers use ammonia compounds to increase nicotine delivery. A 1991 Brown & Williamson confidential blending manual states:

"Ammonia, when added to a tobacco blend, reacts with the indigenous nicotine salts and liberates free nicotine....As the result of such change the ratio of extractable nicotine to bound nicotine in the smoke may be altered in favor of extractable nicotine. As we know, extractable nicotine contributes to impact in cigarette smoke and this is how ammonia can act as an impact booster."

According to the Brown & Williamson manual, all American cigarette manufacturers except Liggett and/or Liggett Group use ammonia technology in their cigarettes.

175. Tobacco Company patents also show that the manufacturers have developed the capability to manipulate nicotine levels in cigarettes to an exacting degree. For example:

a. A Philip Morris patent application discusses an invention that "permits the controlled amounts and when desired, of nicotine into tobacco smoke."

b. Another Philip Morris patent application explains that the proposed invention "is particularly useful for the maintenance of the proper amount of nicotine in tobacco smoke," and notes that "previous efforts have been made to add nicotine to Tobacco Products when the nicotine level in the tobacco was undesirably low."

c. A 1991 Reynolds' patent application states that "processed tobaccos can be manufactured under conditions suitable to provide products having various nicotine levels."

176. Dr. Kessler testified in detail before the Waxman Subcommittee about the various forms of nicotine manipulation practiced by the Tobacco Companies: manipulating the rate at which nicotine is delivered in the cigarette; transferring nicotine from one material to another; increasing the amount of nicotine in cigarettes; and adding nicotine to any part of a cigarette.

177. Dr. Kessler's disclosures show that nicotine is not an inevitable or unavoidable component of tobacco products. In fact, each of the Tobacco Companies has the capability to remove all or virtually all of the nicotine from their products using technology already in existence.

178. The Tobacco Companies' manipulation and control of nicotine levels is further evidenced by the emergence of companies that specialize in manipulating nicotine and that are now offering their services to the Tobacco Companies. On information and belief, a process called tobacco reconstitution, patented and marketed by the Kimberly-Clark Corporation subsidiary, LTR Industries, is widely used throughout the industry.

179. Reconstituted tobacco is made from stalks and stems and other waste that the Tobacco Companies formerly discarded and now use to make cigarettes more cheaply. In the reconstitution process, pieces of tobacco material undergo treatment that results in the extraction of some soluble components, including nicotine. The pieces are then physically formed into a sheet of tobacco material, to which the extracted nicotine is re-added. Although denied by tobacco executives, it is publicly reported that this process adjusts nicotine levels in the products, and that one manufacturer "readily admits to setting levels of nicotine...for the tobacco sheet."

180. An advertisement in Tobacco Industry trade publications for the Kimberly-Clark tobacco reconstitution process states:

"Nicotine levels are becoming a growing concern to the designers of modern cigarettes, particularly those with lower 'tar' deliveries. The Kimberly-Clark tobacco reconstitution process used by LTR Industries permits adjustments of nicotine to your exact requirements....We can help you control your tobacco."

181. The Tobacco Industry's own trade literature explains that the Kimberly-Clark process enables manufacturers to triple or even quadruple the nicotine content of reconstituted tobacco, thereby increasing the nicotine content of the final manufactured product.

182. Another enterprise explicitly specializes in the manipulation of nicotine and its use as an additive. This company does business under the name "The Tobacco Companies of the Contraf Group." An advertisement run by the Contraf Group in the international trade press states: "Don't Do everything Yourself! Let us do it More Efficiently!" Calling itself "The Niche Market Specialists," Contraf lists among its areas of specialization, "Pure Nicotine and other special additives."

Light Menthol Cigarettes: A Marketing Hoax.

183. The Tobacco Companies' manipulation of nicotine is particularly deceptive in its marketing of "light" menthol or low-tar and low-nicotine menthol cigarettes to retain the health conscious segment of the smoking market. Recent studies demonstrate that cigarettes advertised as low tar menthol and low nicotine menthol have higher concentrations of nicotine, by weight, than high yield cigarettes. Nevertheless, the Tobacco Companies have successfully identified "light" menthol cigarettes to consumers as a reduced tar and reduced nicotine product. The Tobacco Companies have accomplished this deception through several strategies.

184. First, the Tobacco Companies designed their "light" menthol products so that advertised tar and nicotine levels understate the amounts of tar and nicotine actually ingested by human smokers. Such design features include a technique called filter ventilation in which nearly invisible holes are drilled in the filter paper, or the filter paper is made more porous. Predictably, many smokers of advertised low tar and lwo nicotine menthol cigarettes block the tiny, laser generated perforations in ventilated filters with their fingers or lips, thereby resulting in greater tar and nicotine yields to those smokers than those measured by the Federal Trade Commission ("FTC") smoking machine.

185. The Tobacco Companies know that the ability to block ventilation holes allows smokers to "compensate" for nicotine losses that would otherwise be caused by tar-reducing modifications. The industry has studied smoker compensation in order to design cigarettes that allow smokers to compensate for lower nicotine yields. One such design feature is known as "elasticity." This refers to the ability of a cigarette, whatever its FTC measured nicotine yield, to deliver enough smoke to permit a smoker to obtain the nicotine he needs, e.g. through more or longer puffs, or by covering ventilation holes.

186. Industry studies show that smokers tend to obtain close to the same amount of nicotine from each cigarette despite differences in yield as measured by the FTC smoking machine. During a 1974 B.A.T. Industries conference, researchers described the result of one such study: "The Kippa study in Germany suggests that whatever the characteristics of cigarettes as determined by smoking machines, the smoker adjusts his pattern to deliver his own nicotine requirements (about 0.8 mg per cigarette)." Smokers' compensation to obtain adequate nicotine also results in the delivery of more tar than the FTC test measure.

187. Second, the use of the more potent "free" nicotine that ammonia helps release, as opposed to the slower acting salt-bound nicotine, also serves to increase the amount of nicotine delivered to smokers of "light" menthol cigarettes. An ammoniated menthol cigarette that delivers more potent nicotine to smokers measures the same as a menthol cigarette with no such additives.

188. The use of ammonia is another method used by the Tobacco Companies to reduce the FTC - measured tar and nicotine levels in their menthol cigarettes over the past two decades while still furnishing smokers with sufficient nicotine delivery. According to John Kreisher, a former associate scientific director for CTR, "(a)mmonia helped the industry lower the tar and allowed smokers to get more bang with less nicotine. It solved a couple of problems at the same time."

189. Third, the Tobacco Companies maintain that nicotine levels follow tar levels. In the words of Dr. Alexander Spears, vice chairman of Lorillard, in his 1994 testimony before the Waxman Subcommittee: "Nicotine (level) follows the tar level," and the correlation between the two "is essentially perfect," and "shows that there is no manipulation of nicotine." Dr. Spears neglected to mention to Congress that in a 1981 study, not intended for public release, he stated explicitly that low-tar menthol cigarettes use special blends of tobacco to keep the level of nicotine up while tar is reduced: "(T)he lowest tar segment (of product categories) is composed of cigarettes utilizing a tobacco blend which is significantly higher in nicotine." RJR-Nabisco, Lorillard, American, and the Tobacco Institute have similarly represented to the public and to the FDA that the nicotine levels in their products are purely a function of setting the tar levels of such products.

190. American told the Waxman Subcommittee in an October 14, 1994 letter that "nicotine follows 'tar' delivery, i.e. high 'tar' -- high nicotine, low 'tar' -- low nicotine....Nicotine is neither adjusted nor altered to compensate for losses inherent in the manufacturing process." Internal company documents reviewed by the Waxman Subcommittee show, however, that American's experimentation with adding nicotine to its tobacco was extensive -- extensive enough for American executive John T. Ashworth to instruct employees in a confidential memorandum: "In the future our use of nicotine should be referred to as 'Compound W' in our experimental work, reports, and memorandums, either for distribution within the Department or for outside distribution."

191. Recent tests conducted at the direction of the FDA show that the low-tar menthol brands actually have more nicotine by weight than the non-"light" menthol brands. The high level of nicotine found in lower tar menthol cigarettes seriously misleads consumers and renders the Tobacco Industry's claim of an "essentially perfect" correlation between reduced tar and nicotine levels false. According to the FDA, the Tobacco Companies use a combination of the methods described above for boosting nicotine delivery to compensate for nicotine losses from the application of tar-reducing design modifications. The Industry thereby maintains a continuing market for a product that consumers are misled to believe contains less of each of the other harmful ingredients in regular menthol cigarettes.

F. Tolling Of the Applicable Statutes of Limitation.

192. Defendant Reynolds expressly, impliedly, or both, promised to Plaintiffs and the Class during the campaign to retrieve Uptown cigarettes from the market that it would withdraw its plans to target market the Black community with its menthol tobacco products in the wake of a firestorm of negative national protest. In agreeing to withdraw its product and to cease such targeting activity directed at Blacks, the Defendant Reynolds effectively promised also to cease its targeting activity with regard to other menthol brands against the Black community. However, Defendant Reynolds again, in January 1997, released a menthol version of Camel cigarettes which it continues to target to the Black community and against which Plaintiffs have launched another protest against Defendant Reynolds to cease and desist from its unconstitutional and disriminatory activity of targeting Blacks with menthol products. Similarly, other Defendants have released menthol versions of their brand cigarettes which they continue to target against the Black community.

193. Defendants up until November, 1997, steadfastly maintained that they neither targeted Black consumers with a defective and dangerous product, mentholated tobacco products, nor did they admit to having spent vast sums of money promoting and advertising menthol tobacco products in Black media and neighborhoods across America for more than forty years. At that time, through the massive release of more than thirty-nine thousand documents by the tobaccco industry, Plaintiffs and the Class members became aware not only of the successful concealment of a massive conspiracy to mislead the American pubic community regarding the safety of using menthol tobacco products, but also the concerted effort by the tobacco companies to conceal the their defective, harmful and hazardous nature. It was only upon the release to the public of the Surgeon General’s Report, by the U.S. Congress in April, 1998, that it became known to the Black public, for the first time, the true extent of the tobacco industry’s continuing pattern of targeting the Black community with menthol tobacco products and the harmful health effects of such defective products on Plaintiffs and the Class members.

194. Defendants’ affirmative and intentional acts of fraudulent concealment, suppression and denial of the facts as alleged above have tolled any applicable statutes of limitation. Such acts of fraudulent concealment included intentionally covering up and refusing to disclose internal documents, suppressing and subverting medical and scientific research, and failing to disclose and suppressing information concerning the health consequences of smoking, the hazardous nature of nicotine and menthol along with other additives and the Tobacco Companies' manipulation of the levels of nicotine in their products. Through such acts of fraudulent concealment, Defendants have successfully concealed from Plaintiffs and members of the Class the truth about the hazardous consequences of smoking, the harmful nature of menthol cigarettes and the Tobacco Companies' manipulation of menthol and nicotine levels in their products, thereby tolling the running of any applicable statutes of limitation. Plaintiffs and members of the Class and their participants could not reasonably have discovered the true facts until very recently, the truth having been fraudulently and knowingly concealed by Defendants for decades.

195. In the alternative, Defendants are estopped from relying on any statutes of limitation because of their fraudulent concealment of the hazardous consequences of smoking, the harmful nature of menthol and nicotine and the Tobacco Companies' manipulation of menthol and nicotine levels in their products. The Tobacco Companies were under a duty to disclose this information because it is non-public information over which Defendants had exclusive control, because Defendants knew this information was not available to Plaintiffs or members of the Class or their participants, and because this information was crucial to the Black consuming public in making purchasing decisions.


196. Until very recently, Plaintiffs and members of the Class and their participants had no knowledge that Defendants were engaged in the wrongdoing alleged herein. Because of the fraudulent and active concealment of the wrongdoing by Defendants, including deliberate efforts -- which continue to this day targeting Blacks continues with special advertising campaigns and appeals -- to give Plaintiffs and members of the Class and their participants the materially false impression that there are no negative health consequences to menthol tobacco use, that menthol cigarettes and menthol smokeless tobacco do not cause cancer and other disease and that the Tobacco Companies are not manipulating the menthol and nicotine levels in their products, Plaintiffs and members of the Class and their participants could not reasonably have discovered the wrongdoing and, time prior to this time, nor could the Plaintiffs or members of the Class have, as a practical matter, taken legally effective action given the unavailability, until very recently, of internal memoranda and other documents (as generally described herein) as evidence in support of their claims. Defendants have attempted and are continuing their attempts to keep such internal information from reaching Plaintiffs and members of the Class. Indeed, Defendants still refuse to admit, and continue to conceal, the fact that using the Tobacco Companies' menthol products causes disease and that the nicotine in these products is harmful. The Tobacco Companies still refuse to admit that they have manipulated the level and delivery of nicotine and menthol in their products.



(42 U.S.C. Section 1981)

197. Plaintiffs reallege and incorporate herein paragraphs one through 196 of this Second Amended Complaint.

Section 1981

198. The Civil Rights Act of 1866, as amended, 42 U.S.C. Section 1981, guarantees as follows: "All persons within the jurisdiction of the United States shall have the same rights in every make and enforce is enjoyed by white citizens, includ(ing) the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship." Section 1981 prohibits any purposeful racial discrimination in the sale and distribution of products to the public.

Purposeful Discrimination

199. The Tobacco Companies' discriminatory targeting of menthol tobacco product sales to Black Americans results from sales campaigns, policies and practices that are designed and implemented for the purpose of intentionally promoting a product the defendants know is defective, hazardous and dangerous on the basis of race, and color to individual named Plaintiffs, members of Plaintiff organizations, and the Class.

Violation of Law.

200. The Tobacco Companies' discriminatory targeting of menthol tobacco product sales to Black American impairs the ability of Plaintiffs and the Class to make contractual arrangements for the sale and purchase of tobacco products and violates Section 1981 because of the intentionally discriminatory nature of the Tobacco Companies' policies and practices.


(42 U.S.C. Section 1982)

201. Plaintiffs reallege and incorporate paragraphs one through 200 of this Second Amended Complaint.

Section 1982.

202. The Civil Rights Act of 1866, as amended, 42 U.S.C. Section 1982 guarantees as follows: "All citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property". Section 1982 prohibits any purposeful racial discrimination in the sale and distribution of products to the public.

Purposeful Discrimination.

203. The Tobacco Companies' discriminatory targeting of menthol tobacco product sales to Black Americans results from sales campaigns, policies and practices that are designed and implemented for the purpose of intentionally promoting a product the Defendants know is defective, hazardous and dangerous on the basis of race, and color to named Plaintiffs, members of Plaintiff organizations, and the Class.

Violation of Law.

204. The Tobacco Companies' discriminatory targeting of menthol tobacco product sales to Black Americans denies the contractual rights of Plaintiffs and the Class to express and implied warranties of fitness for use and consumption in the sale and purchase of tobacco products and violates Section 1982 because of the intentionally discriminatory nature of the Tobacco Companies' policies and practices in the sale and distribution of menthol tobacco products to Black Americans.


(42 U.S.C. Section 1983; Fifth and Fourteenth Amendments)

205. Plaintiffs reallege and incorporate paragraphs one through 204 of the Second Amended Complaint.

206. Section 1983 provides as follows: "every person who, under color of any statute, ordinance, regulation, custom or usage, of any State...subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights...secured by the Constitution and laws, shall be liable to the party injured in an action...for redress." The Fifth Amendment to the Constitution guarantees all persons "due process of law" and "equal protection of the laws". The Fourteenth Amendment to the Constitution guarantees all persons the "equal protection of the laws." Section 1983 and the Fourteenth Amendment prohibit any purposeful racial discrimination in the sale and distribution of goods to the public. The Fifth Amendment prohibits discrimination by the federal government or persons acting under color of federal law in all matters.

Purposeful Discrimination.

207. The Tobacco Companies' discriminatory targeting of menthol tobacco product sales to Black American results from sales campaigns, policies and practices that are designed and implemented for the purpose of intentionally promoting a product the defendants know is defective, hazardous and dangerous on the basis of race, color or national origin to individual named Plaintiffs, members of Plaintiff organizations, and the Class.

Violation of Law.

208. The Tobacco Companies' discriminatory targeting of menthol tobacco product sales to Black Americans denies Plaintiffs and the Class equal protection of the laws and violates Section 1983 because of the intentionally discriminatory nature of the Tobacco Companies' sales campaigns, policies and practices.

209. The Tobacco Companies also rely upon the Federal Cigarette Labeling and Advertising Act, (hereinafter referred to as the "Act"), 15 U.S.C. Section 1331 et. seq. to shield them from any liability to consumers who have not been informed of the dangers of consuming menthol tobacco products, since the provisions of the Act specifically pre-empt all civil actions under state law based upon the Defendant’s breach of the duty to provide information about the dangers of smoking menthol cigarettes through clear and adequate warning labels and advertising. As a result of such preemption under Federal law, Defendants’ actions of failing to adequately warn or inform the public were "under color of federal law" and thus in violation of 42 U.S.C. Section 1983, the Fifth Amendment and the Fourteenth Amendment to the Constitution of the United States.

Count IV

(42 U.S.C. Section 1985(3)

208. Plaintiffs reallege and incorporate herein paragraphs one through 207 of this Second Amended Complaint.

209. Section 1985(3) provides as follows: "If two or more persons in any State or Territory conspire...for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the law, or of equal privileges and immunities under the laws...whereby another is injured ...or deprived of having and exercising any right of privilege of a citizen of the Unti3d Staes, the party of injured or deprived may have an action for the recovery of damages occasioned by such injury or deprivation, against any one or more of the conspirators."


210. The defendants have engaged in a conspiracy to conceal from, mislead, and deceive African-Americans, including Plaintiffs and the Class and their participants, regarding the overwhelming evidence that the use of their menthol tobacco products can cause serious and fatal diseases and that such products are more harmful than non-menthol tobacco products.

Violation of Law.

211. The defendants conduct of concealment and disinformation regarding the use of menthol and other additives as well as their conspiring to suppress the development and marketing of safer menthol tobacco products or less hazardous menthol products deprived African-Americans, on the basis of race, the equal protection of the law and caused injury to their person and property.


WHEREFORE, Plaintiffs pray for relief and judgment against the Defendants, jointly and severally, as follows:

1. For certification of the proposed Class and designation of Plaintiffs as the Class Representatives and the undersigned counsel as Class Counsel.

2. For injunctive and declaratory relief as follows:

(a) Requiring Defendants to disclose, disseminate, and publish all research previously, conducted directly or indirectly by themselves and their respective agents affiliates, servants, officers, directors, employees, and all persons acting in concert with them, that relates to Black menthol smokers and issues of smoking and health of Blacks;

(b) Requiring Defendants to immediately cease and desist from either manufacturing, selling, or promoting menthol tobacco products and the targeting of such products to Black Americans.

(c) Requiring Defendants to cease advertising and promotion campaigns that target and attract Blacks to begin smoking menthol tobacco products;

(d) Enjoining Defendants and their respective successors, agents, servants, officers, directors, employees and all persons acting in concert with them, directly or indirectly, from engaging in conduct violative of 42 U.S.C. Sections 1981, 1982, 1983, and 1985(3).

3. Ordering pre-judgment and post-judgment interest as provided by law.

4. Awarding, incidental to declaratory relief, punitive damages in an amount sufficient to punish Defendants and to deter future unlawful and unconstitutional conduct.

5. Awarding Plaintiffs reasonable attorneys' fees and costs.

6. Granting any and all such other and further relief as this Court deems equitable, just and proper.


Plaintiffs demand a trial by jury.

Respectfully submitted,


Of Counsel:



Robert Kaczorowski, Esq.

William R. Adams, Jr., Esq.

Professor of Law

Fordham University

School of Law

140 W. 62nd Street

New York, NY 10023




Carol A. Black, Esq.

123 S. Broad Street

Suite 1820

Philadelphia, PA 19109

(215) 545-9880




Stephen A. Sheller, Esq.

1528 Walnut Street

3rd Floor

Philadelphia, PA 19102

(215) 790-7300

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