BROWN & WILLIAMSON -- COUNCIL FOR TOBACCO RESEARCH CTR NOTEBOOK
BROWN & WILLIAMSON -- COUNCIL FOR TOBACCO RESEARCH CTR NOTEBOOK
PREPARED BY SHOOK, HARDY & BACONOCTOBER 1991
CONFIDENTIAL ATTORNEY-CLIENT MEMORANDUM CONTAINING OPINION WORK-PRODUCT OF RETAINED OUTSIDE COUNSEL
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BROWN & WILLIAMSON CTR
NOTEBOOK EXECUTIVE SUMMARY
I. Introduction
As Part Of the strategic assignments designed to facilitate a comprehensive "first level" defense preparation, we have reviewed Brown & Williamson documents relating to Brown & Williamson's (and the tobacco industry's) relationship with the Council for Tobacco Research, U.S.A., Inc., ("CTR") and prepared a litigation notebook that establishes the core defense positions on issues that may arise in the litigation in connection with CTR. The notebook contains a synopsis of the issues and sub-issues, both general and Brown & Williamson-specific; plaintiffs' arguments; defense responses: and a selection of key documents that are referenced in the notebook either as support for plaintiffs' allegations or as a Part of Brown & Williamson's responses.
Four major subject areas are covered in this notebook: a) the creation and use of CTR by Brown,& Williamson and the tobacco industry (Parts I, II and VII), b) the relevance of CTR-funded research (Part III); c) the industry's and its lawyers' alleged control over CTR (Parts IV and V); and d) CTR's alleged control over its funded researchers and the results of that research (Part VI).
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II. Allegations and Responses
We anticipate that there will be three primary charges concerning Brown & Williamson (as a part of the "tobacco industry"), and CTR. First, plaintiffs will allege that Brown Williamson and CTR were part of an industry-wide conspiracy designed to mislead the public into believing that there was a genuine controversy concerning smoking and health issues. As evidence of this conspiracy, plaintiffs may point to coordinated action by the industry in setting up and funding CTR; the "improper purpose" (e.g. public relations) behind the decision to create CTR; and the intimate role industry representatives and lawyers play in both the day-to-day activities and the funding decisions of CTR.
Second, plaintiffs will claim that CTR failed to fund relevant research. In fact, according to plaintiffs, the industry had no intention of permitting CTR to fund research that might answer questions about smoking and health. This alleged failure to fund relevant research will likely be used by plaintiffs' to support the claim that the industry failed to test its product, and consequently, failed to warn of the dangers associated with its product.
Third, plaintiffs will contend that the industry and CTR controlled CTR's grantees and actively suppressed research results
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that were unfavorable to the industry's position an causation. For example, plaintiffs may point to allegations by Dr. Freddy Homburger that CTR attempted to suppress the results of his studies because they were adverse to the industry. Plaintiffs may also rely on documents concerning the Lauchtenbergers' research to support this claim.
A. Creation and Industry's Use of CTR
1. Factual Background
In 1953, studies were published that claimed to have proven an established relationship between smoking and lung cancer. At this time, the tobacco industry began considering a scientific investigation into the question of whether cigarette smoking causes disease. Paul M. Hahn, Chief Executive of the American Tobacco Company, initiated the action to form what was originally known as the Tobacco Industry Research Committee (TIRC).1 The Committee was composed of nine of the cigarette and tobacco products
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1 . To avoid confusion and for consistency, the term "CTR" has been utilized instead of "TIRC" throughout the remainder of the Executive Summary and Notebook. By way of background, CTR's Executive Committee agreed on January 29, 1964 to change the name of the organization to "The Council for Tobacco Research, U.S.A. (CTR )." On January 81 1971 CTR filed a Certification of Incorporation with the Department of State of the State of New York and became the Council for Tobacco Research, U.S.A., Inc.
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manufacturing companies in the United States, and five organizations of growers of leaf tobacco and tobacco warehouse associations. The present sponsors are roughly the same. The formation of the TIRC was announced in early January 1954 by a full page advertisement that appeared in 448 newspapers throughout the United States.
Part of CTR'S mission was to make available to the public, information about smoking and health. With no trade association at the time, the industry enlisted the aid of Hill & Knowlton, a well known public relations firm, to effectuate this mission. CTR's public relations responsibilities were shifted to the Tobacco institute ("TI") after TI was formed in 1958.
2. Anticipated Plaintiffs' Position
We expect plaintiffs to argue that CTR was a fraud, created not to conduct relevant research, but to further political, legal and public relations aims. In addition, plaintiffs may assert that Brown & Williamson and the industry conspired with CTR to mislead the public concerning smoking and health.
Specifically, plaintiffs may claim that through CTR the industry conspired to refute, undermine, and neutralize all information coming from the scientific and medical community about the health hazards of smoking while at the same time over-promoting
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those few studies which suggested that smoking was not harmful. The end result of this conspiracy, according to plaintiffs, was to reassure smokers that "nothing had been proven" and thereby encourage them to continue smoking and to encourage new smokers to begin smoking.
Plaintiffs will characterize all of CTR'S activities as "public relations." In addition, plaintiffs may allege that CTR maintains contact with public health entities and other groups involved in smoking and health research in an effort to further "perpetuate" the notion of a smoking and health controversy and to assure the public that the industry is doing everything it can to resolve that controversy.
3. Brown & Williamson's Response
Plaintiffs' contention that CTR was created for improper reasons is unconvincing and largely unsupported by the documents.
A responsible industry, faced with scientific studies questioning the safety of its product, would have, among other things, supported research by independent scientists addressing the basic causes of the purported problem and more focused studies relating specifically to that product. This is precisely what the tobacco industry did. It may be that the industry derived certain incidental benefits from CTR in terms of public relations, litigation and legislative
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matters, but these "benefits" were not the motivating factor underlying the industry's decision to create an entity like CTR nor do they detract from the legitimacy of CTR.
Moreover, there is no evidence of any conspiracy. This claim was expressly rejected by the jury in the Cipollone case who viewed hundreds of internal company documents. Certainly the companies all contributed to CTR and may have worked together to improve the organization but there was no improper purpose underlying this "coordinated" activity.
Both the goal of CTR -- to investigate claims concerning smoking and health -- and the means of accomplishing this goal -- funding independent research -- reflect responsible corporate conduct.
Finally, there is no evidence of fraud. Neither the industry nor CTR "created" or "perpetuated" a false controversy. In fact, there are still many "controversial" and unanswered questions concerning smoking and health matters. In addition, CTR worked with other research-oriented entities in order to avoid duplication of research efforts and to more effectively use research dollars -- not to "influence" these groups or to mislead the public.
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a. CTR Research
1. Factual Background
A Scientific Director and Scientific Advisory Board (SAB) composed of distinguished man of science, were placed in charge of the research activities of CTR. Their role was to fund research that would identify and define the factor or factors which might be involved in the causation of certain chronic diseases that had been reported to be statistically associated with cigarette smoking. Thus, they were especially concerned with the etiology of cancer, cardiovascular disease, and chronic respiratory disease. The Scientific Director and the SAB were asked specifically to plan and direct a research program that would endeavor to fulfill this goal and were assured the funds and freedom to accomplish this task.
2. Anticipated Plaintiffs' Position
Plaintiffs will likely argue that CTR-funded research was not relevant and, in fact, was not designed to determine whether smoking causes lung cancer or other diseases. Plaintiffs will assert that CTR adopted the research philosophy of funding basic research and the etiology of diseases to enable the industry to argue that an understanding of the disease itself was needed before
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cigarette smoke could be legitimately accused. Moreover, this research philosophy enabled CTR to fund research that would implicate other factors such as stress, nutrition and genetics, thereby shifting public attention away from cigarettes. Plaintiffs likely will point to internal company documents that contain express criticism of the relevancy of CTR-funded research to support this claim.
The alleged failure to fund relevant research can be used by plaintiffs to support two causes of action. First, plaintiffs may rely an this as further support for the claim that CTR was involved with the industry in a conspiracy to commit fraud on the public. For example, plaintiffs may assert that publicly the industry was taking the position that CTR was designed to determine whether smoking caused disease, while privately (based on internal company documents) the industry was admitting that CTR was not funding relevant research. Second, to the extent Brown & Williamson and the other manufacturers relied on CTR research to discharge their duty to test (and hence their duty to warn), plaintiffs may claim that the funding of irrelevant research would not satisfy this duty.
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3. Defense Response
Brown & Williamson can demonstrate that CTR-funded research was relevant and appropriate to the investigation of smoking and health. Indeed, defendants' expert witnesses can testify that CTR's leaders were quite visionary and that CTR-funded research was often on the cutting edge of smoking and health issues. Moreover, a good number of CTR-funded researchers also received money from other reputable organizations such as NIH and USPHS. Finally, Brown &Williamson's (and the other companies') criticism of the relevance of CTR research projects must be put in the proper perspective. All of the companies differed somewhat in their approach to research and no one can legitimately contend that there was only one way to try to resolve the questions concerning smoking and health.
C. Industry's Alleged Control Over CTR
1. Factual Background
CTR's organizational structure consists of a Board of Directors; a Scientific Advisory Board; a Scientific Director; and a scientific staff. The Board of Directors is made up, in part, of representatives from the member companies. It is responsible for ensuring that the necessary funds are available to maintain CTR.
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it also handles administrative matters, such as selecting and hiring CTR's staff, drafting the by-laws, preparing retirement plans and establishing CTR staff salaries.
Initially, members of the Industry Technical Committee (ITC) and representatives of Hill & Knowlton selected and hired the Scientific Advisory Board. The Scientific Advisory Board now appoints new board members by obtaining suggestions from current SAB members. The appointment, however, requires the approval of CTR's chairman, a position which typically has been filled by a retired tobacco company president or general counsel.
The member companies originally selected and hired the first Scientific Director, Dr. Little. Subsequent scientific director appointments have been made at the recommendation of the SAB, subject to the approval of the chairman.
The research directors of the member company serve on the ITC which responds to questions from the SAB. A member of the ITC attends SAB meetings, but does not vote an grants. Company representatives, including the chairman of do not participate in determining the research policy or program.
CTR is funded solely by the member companies. Dues are assessed on an annual basis.
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2. Anticipated Plaintiffs' Position
Plaintiffs will argue that the industry could perpetuate a false controversy concerning smoking and health because of its control of CTR. Plaintiffs may rely on internal company documents to suggest that the industry hand-picked the original SAB and Scientific Director and that they are still involved in the selection of key CTR officials. Plaintiffs also may claim that CTR officials, controlled by the industry, funded only those grantees deemed helpful to the industry.
In addition, plaintiffs will allege that industry lawyers were improperly involved in and controlled the funding and administrative processes of CTR. Documents regarding CTR special Projects may suggest that lawyers planned and controlled the research program. Finally, plaintiffs may claim that lawyers stopped research, such as Central Nervous system studies, that they feared would adversely impact the industry's position on causation in the litigation.
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3. Brown & Williamson's Response
Brown & Williamson can assert that CTR, not the industry, makes funding decisions. CTR has virtual autonomy in deciding who and what to fund, within the parameters set by its By-Laws. Although industry representatives may make suggestions, they do not have a role in the final decisions of the SAB and the Scientific Director.
With respect to the allegations of lawyer involvement, Brown & Williamson can assert that lawyers for the industry have developed a great deal of expertise in the smoking and health area over the years. Therefore, it is not surprising that they may be involved in advising the industry about the industry's various research efforts. Their involvement, however, is not improper and does not extend to "controlling" CTR.
Finally, it is important that CTR Special Projects be correctly characterized, and, in particular, that they not be confused with grant application procedures. CTR Special Projects are budgeted separately and handled differently than grants. Most of the documents concerning CTR Special Projects should be protected by the attorney-client privilege and the work product doctrine.
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D. Suppression
Factual Background
CTR's Statement of Policy expressly states that:
The Committee desires to have scientists work with the greatest freedom and without domination of any kind. It will make no attempt to direct the administration of the project once started, to influence its course or to control its results other than to be assured that the funds are properly expended for the purposes of the grant and that all findings are reported in accordance with the best scientific practice.
With respect to publication of results, the statement of Policy provides:
It [the committee] has no objection to dissemination to the public of any or all final conclusions from the project [in] accepted medical and scientific journals or before accepted medical or scientific societies.
2. Anticipated Plaintiffs, Position
Plaintiffs likely will assert that CTR controlled its grantees and structured their research in a manner that assured that their results would not be harmful to the industry.
Plaintiffs also may claim that CTR and the tobacco industry attempted to and/or actually suppressed potentially "harmful" results. Industry documents may suggest that titles and manuscripts were changed by CTR officials to reflect the tobacco industry's position. Moreover, plaintiffs will likely point to the testimony of Dr. Freddy
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Homburger in Cipollone, as well as documents concerning the Lauchtenbergers' research, to support an allegation that CTR suppressed adverse findings.
3. Brown & Williamson's Response
There is no evidence of suppression. For example, Dr. Homburger admitted during cross-examination in Cipollone that all of his CTR-funded studies were published. Similarly, documents indicate that Dr. Cecile Lauchtenberger publicly admitted that all of the Lauchtenbergers' research was published.
Moreover, grantees have complete control over their research. CTR grantees submit manuscripts to CTR at their own discretion. A CTR grantee is not required to make any CTR-suggested changes. Finally, rather than exonerating cigarettes, nearly all of CTR-funded research had or has the possibility of helping to show whether and how smoking causes disease.
III. Impact on Litigation
It is likely that the relationship between CTR and the industry will not have a negative impact an smoking and health litigation. To date, plaintiffs have concentrated heavily on this issue but thus far have been unsuccessful in their attempts to
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discredit CTR. Placed in the proper perspective, the industry's support of CTR can be used to demonstrate corporate responsibility The industry provided unrestricted research grants in a timely manner to examine the smoking and health issue. In other words, CTR can be legitimately characterized as an entity created by responsible and prudent manufacturers.
On the other hand, plaintiffs, evidence will be largely designed to cast suspicion on the industry's conduct. Perhaps the most troubling claim is that CTR was used as part of the industrywide conspiracy to commit fraud. As this is an intentional tort cause of action it carries with it the possibility of punitive damages. As previously noted, however, the jury in Cipollone expressly addressed the claim of conspiracy and rejected it, despite having viewed hundreds of internal company documents.
With respect to a claim for failure to test, the tobacco industry's relationship with CTR will be relevant only to the extent that the industry relied on its funding of CTR to discharge its duty to test (or as it relates to the companies' duty to warn) . Moreover, failure to test is not generally recognized as a separate cause of action in most jurisdictions and accordingly such evidence may not be admissible.
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Although a suppression claim would ordinarily be troublesome because of the possibility of punitive damages, this claim should not be permitted to go to the jury because there is no legitimate evidence to support it.
It is also important to note that the causes of action to which the CTR issue are arguably relevant may be preempted by the Labelling Act, depending upon the United States Supreme Court's decision in Cipollone. Thus, Brown & Williamson may have a reasonably strong argument that post-1966 evidence on this issue will be inadmissible or at least greatly restricted.
IV. Conclusion
Plaintiffs' sinister characterization of the industry's relationship with CTR is largely unpersuasive. Brown & Williamson and the industry have solid responses to the evidence plaintiffs' might pursue with regard to CTR. Therefore, it Is reasonable to anticipate that if documents are placed in context and witnesses are well briefed concerning CTR's relationship with the industry, the issue of CTR will not have an adverse impact on the litigation.
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Brown & Williamson CTR Issues Notebook
OUTLINE
The council for Tobacco Research (CTR) formerly the Tobacco Industry Research Committee (TIRC), was organized in 1954 by the chief officers of nine U.S. cigarette and tobacco products manufacturing companies and five growers of leaf tobacco and tobacco warehouse associations.
A. Anticipated Plaintiff Position: CTR was created in response to the industry's public relations problems that arose in the early 1950s as a result of press coverage of studies that linked cigarette smoking to health problems. Despite the industry's public statements to the contrary, "the creation of this entity and the work performed was nothing but a hoax created for public relations purposes with no intention of seeking the truth."
1. In late 1953, the industry conceived the idea of creating and funding a research-oriented anted entity, CTR, as a public relations ploy designed to undermine the negative effects of recent, prominently publicized epidemiological studies and animal experiments linking cigarette smoking and cancer.
2. In order to most effectively handle its public relations problems, the tobacco industry hired Hill & Knowlton, Inc. (H&K), a world famous New York City-based public relations firm, to formulate '-he structure and approach of CTR. The practical effect of this decision was that CTR, which was supposed to be a scientific entity, became a public relations operation for the industry.
3. There is overwhelming evidence from Brown & Williamson's (and other tobacco manufacturers) own internal documents that CTR was designed to be, and, in fact, became solely a public relations operation for the industry. This evidence includes (a) admissions by industry representatives that the primary purpose for creating CTR was public relations; (b) the fact that CTR's public relations budget often exceeded its grant budget; and (c) the subterfuge of creating The Tobacco Institute, ostensibly to distance CTR from public relations activities, when in reality, CTR continued to engage in public relations.
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Defense Response: CTR was created to fund research that would investigate the questions that were being raised as a result of studies concerning the purported health effects of cigarette smoking. It was "a hoax created for public relations purposes."
1. Although the industry did not believe that these studies proved that cigarettes caused disease, it nonetheless responded to this research by creating an organization that would aid and assist research into tobacco and health and provide factual information derived therein to the public.
2. Hill & Knowlton was engaged solely to assist CTR in effectuating its legitimate scientific purposes.
3. There is not overwhelming evidence that CTR was designed to be, and, in fact became solely a public relations operation for the industry. Public relations may have been one of the preliminary purposes of CTR but the primary purpose was to assist in funding research that would provide answers to the smoking and health controversy. In short, CTR has never been a "public relations operations."
One of the stated purposes of CTR was to convey smoking and health information to the public
In order to fulfill this communications function CTR has retained public relations staff since its inception.
A. Anticipated Plaintiff Position: CTR was part of an industry-wide conspiracy to mislead the public concerning the smoking and health controversy and to reassure the public of the industry's "sincere" efforts to resolve that controversy. Specifically, CTR conspired with the industry to refute, undermine and neutralize information coming from the scientific and medical community about the health hazards of smoking and at the same time, confuse and mislead the consuming public in an effort to encourage existing smokers to continue and new persons to begin smoking.
1. CTR conspired with the industry to assure the public, first, that cigarettes were "safe," and second, that the industry was doing everything it could to resolve the "questions" being raised by "claims" that cigarette smoking was harmful.
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2. CTR conspired with the industry to manipulate public opinion and minimize public awareness regarding the health risks of smoking by first "creating" and then perpetuating the idea of an ongoing controversy concerning smoking and health. This was done by denying and refuting all adverse reports concerning smoking and by over promoting "favorable" studies. These efforts ultimately resulted in encouraging existing smokers to continue and new smokers to begin smoking.
B. Defense Response: There is no evidence of any conspiracy or fraud. In fact, these claims were expressly rejected by the Cipollone jury who viewed a number of internal industry documents. In addition CTR, like any other organization involved in a vigorous public debate, necessarily made public pronouncements but these statements were neither false nor misleading. Finally, in order to fulfill its subsidiary purpose - to communicate to the public in a clear and appropriate fashion regarding the scientific issues involved and how the industry was responding to then -- CTR, like all the prominent health organizations on both sides of the smoking and health debate, had a public relations staff.
1. There is no evidence of any conspiracy. The industry did not conspire with CTR to assure the public that cigarettes were safe. This is a misrepresentation of the industry's position on causation -- the industry has never asserted that cigarettes are either "safe" or "unsafe." Moreover, the industry justifiably wished to inform the public of the efforts it was making, through CTR and other means, to resolve smoking and health issues. Neither CTR nor the industry made false or misleading statements about those efforts.
2. There was no "establishment" or "perpetuation" of a false controversy. Many highly reputable scientists had serious questions about the relationship, if any, between smoking and health. For example, in the mid-1950's, NCI and USPHA were also refuting claims regarding cigarette smoking and health. Part of CTR's purpose was to be aware of all views on this issue and to provide these facts to the public.
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III. According to its By-Laws, the purpose and objective of CTR are "to aid and assist research into tobacco use and health, and Particularly Into the alleged relationship between the use of tobacco and lung cancer and to make available to the public factual information an this subject."
Anticipated Plaintiff Position: CTR research was not designed to determine whether smoking causes lung cancer or other diseases.
1. CTR adopted the research philosophy of funding basic research on the etiology of diseases associated with smoking because it enabled the industry to argue that an understanding of the disease itself is needed before cigarette smoke can be legitimately accused. This philosophy enabled the industry to maximize CTR's usefulness in public relations, litigation and legislation. It also permitted CTR to avoid funding relevant research an the effects of cigarette smoke on human health.
2. Instead of funding relevant research, CTR funded research which would implicate other factors such as stress, nutrition and genetics.
3. Over the years, B&W representatives have openly criticized CTR and admitted that CTR was not funding relevant research.
4. The rest of the tobacco industry was also debating the merits of CTR. Each company ultimately concluded that it was not funding research relevant to the smoking and health issue.
5. Industry Counsel, the Tobacco Institute and others complained about CTR's ineffective methods and inability to conduct relevant research.
Defense Response: The tobacco industry created CTR to assist in the investigation of the questions that were being raised about the safety of its product. CTR was designed to encourage competent scientific authorities "to find ultimate facts which will dispel" the confusion surrounding smoking and health issues.
1. CTR funded research appropriate to the investigation of smoking and health. This included both basic research and research concerning health-related symptoms and diseases associated with smoking in the scientific literature.
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2. The industry, through CTR and other avenues, has supported a wide range of scientific research into smoking and health issues. Factors such as stress, nutrition and genetics have been implicated by other scientists as being potential causal factors in diseases usually associated With cigarette Smoking.
3. B&W recognized that basic research was important, but believed that more specifically targeted research Was also necessary to answer the smoking and health controversy. The documents indicate that B&W remained committed to investigating smoking and health questions.
4. All the companies differed somewhat in their approach to research. Critical review is healthy and should be encouraged in a scientific debate.
5. It is not surprising that CTR over its 36 year history would, from time to time, be criticized. Many of the criticisms stemmed from a difference in philosophy. The important point is that CTR did not change its philosophy in the face of the criticism. It remained an independent entity which made its own decisions about the direction it should take. . In retrospect, it is now clear that CTR's leaders wore quite visionary.
IV. A Scientific Director and a Scientific Advisory 4 Board (SAB) composed of distinguished persons from medicine, science, and education, make CTR's funding decisions.
A. Anticipated Plaintiff Position: Although CTR was portrayed and promoted as an independent entity, in reality, the tobacco industry controlled it and determined what projects would receive CTR funding.
1. CTR officials, including the members of the SAB and Scientific Directors, who are in charge of allocating funds, are handpicked by the tobacco industry and CTR's public relations agent.
2. CTR's Board of Directors, comprised of tobacco industry presidents, insured the SAB's obligation and loyalty to the industry by permitting them to personally receive and benefit from CTR grant money.
3. The industry's control aver the SAB is so complete that SAB statements are often intercepted so that their true beliefs about smoking and health cannot be expressed.
4. CTR staff, including advisors to the Scientific Director, SAB and grantees, are also carefully selected by industry officials, further solidifying the industry's control over CTR.
5. The procedures - for reviewing grant applications are designed to ensure that the projects funded can not harm the industry.
6. The Industry Technical Committee (ITC), which is comprised of tobacco industry research directors, monitors CTR to insure that it does not do anything that will harm the industry's position on smoking and health.
7. The tobacco industry instigated contract research at CTR to appear as if it was funding relevant, independent research when, in reality, it maintained ultimate control over the experimental design, scientific procedures employed, and publication of the results.
Defense Response: The Scientific Director and SAB, not the industry, administer CTR and determine what research will receive funding.
1. The Scientific Director is hired by the industry. However, the Scientific Advisory board which makes the grant decisions, is not.
2. CTR has had a policy of net allowing more than 15% of the grant dollars per year to be awarded to SAB members. The 15% level has never been exceeded and the level has usually been well below 15%. In fact, SAB funding has been less than 5% of the budget for all but eight years of CTR's history. During that eight years, 1966-1974, the highest percentage was in 1967 when SAB funding reached 12.98% of the budget. Moreover, CTR requires that grants awarded to SAB members be reviewed by outside consultants.
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3. SAB statements were not reviewed to prevent the SAB from expressing their "true beliefs" an smoking and health matters. CTR did want to minimize the SAB participation in media relations - not because it was concerned about the SAB's views -- but rather to avoid mixing "Public relations" with objective scientific inquiry.
4. Industry officials have participated in locating CTR staff members. The important point, however, is that the individuals selected are highly qualified and they are not "controlled" by the tobacco Industry.
5. The procedures CTR employs for reviewing grants is similar to procedures employed by other reputable scientific organizations such as NIH.
6. The tobacco industry is rightfully interested in how the millions of dollars they contribute to CTR are utilized. This interest does not, however, extend to interference in CTR's program. Moreover, the industry monitors all smoking and health research.
7. CTR began to do contract research to fill in gaps that grant research could not. As is traditional with contract research, CTR retained publication rights for research under contract. However, CTR never prevented publication of the research it conducted under contract. Mr. Yeaman has stated that research under contract to the Council is as purely "pro bono publico" -- as is research carried on under grants.
V. Initially, the Member companies determined it would be advisable for CTR to have legal advice and thus suggested the formation of a Law Committee, composed of general counsel representatives to the member companies. The Law Committee provided legal advice to CTR until 1957 when CTR retained outside counsel.
A. Anticipated Plaintiff Position: Lawyers, not independent scientists, determine what CTR should or should not fund in order to maximize CTR's usefulness to the industry In litigation and legislative matters.
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1. CTR was created, in part, to provide the industry's lawyers with assistance in the areas of litigation and legislation. It continues to provide such assistance today.
2. Industry attorneys controlled many of the critical decision making processes of CTR. Thus, they were able to maximize CTR's usefulness to the industry.
3. Industry lawyers stopped research they identified as unfavorable to the industry. For example, the lawyers were instrumental in terminating CTR-funded research on nicotine because they believed it was potentially dangerous to the industry's position on addiction.
4. Lawyers, not the SAB, designed research projects for CTR. The" projects were called "Special projects- and the results of this research were used by the lawyers in the courtroom, in the political arena and for public relations purposes.
5. Industry lawyers involved themselves in day to day activities of CTR.
B. Defense Response: Lawyers do not control. Lawyers are interested in CTR research because the cigarette industry has been involved in smoking and health litigation since 1954. As a result, lawyers defending the companies have had to become knowledgeable regarding all smoking and health matters, including scientific issues.
I. CTR was created, in part, to fulfill defendants' corporate responsibility to the public by investigating claims that wore being made about the safety of their product. The industry provided unrestricted research grants to scientists investigating the relationship between smoking and health. These findings were made available to the public, Congress and ultimately to Juries in smoking and health litigation. These facts do not detract from the importance of the work and do not impeach its validity.
2. The lawyers were understandably Interested pertinent research that might affect the litigation. They did not, however, "control" or influence any decision making processes.
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Industry lawyers did not interfere with funding decisions unless there was clearly a legal problem -- unrelated to smoking and health litigation -- with that research. Thus for example, attorney involvement with respect to Central Nervous System (CIS) "addiction" research was motivated by concerns about compliance with CTR's By-Laws and potential anti-trust violations, not by concern for the industry's position on "addiction."
4. CTR special projects were developed by the industry, upon the advice of counsel, to provide funds to independent scientific and medical investigators who would conduct research in areas-that might be of assistance in smoking and health litigation and Congressional hearings. It was also anticipated that some of those individuals funded might be willing to testify in future litigation and congressional matters. Many of the documents concerning CTR special projects ate, therefore, considered privileged.
5. There is nothing suspicious about lawyers being involved in research. The industry has been involved in smoking and health lawsuits for nearly 40 years. Accordingly, "[i]t is not surprising that lawyers representing the Tobacco Industry would be interested in and knowledgeable about and involved in Tobacco Industry research on smoking and health."
CTR grant recipients are permitted to present their research results in accepted medical or scientific societies and to disseminate any or all final conclusions from their projects.
A. Anticipated Plaintiff Position: Representatives of CTR routinely met with grantees to help "shape" their projects or to suggest that they needed to "re-think" their position on smoking and health matters. CTR also edited grantee's manuscripts to reflect the industry's position on smoking and health. If the grantee refused to accept the changes or if the results of the project were unfavorable, CTR suppressed the research.
1. CTR representatives met with grantees to try to influence their research and/or their opinions on smoking and health matters.
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2. CTR personnel, including the research director, executive Secretary and public relations consultant, edited manuscripts to ensure that the reported results reflected the industry's position on smoking and health.
3. When CTR could not change the minds of its funded researchers, it suppressed or attempted to refute their results.
B. Defense Response: CTR's stated policy "guarantee complete freedom of thought and action to scientist receiving grants" and approves and encourages the presentation of the results of their research in accepted poor reviewed journals. There is no evidence that CT or the industry ever suppressed results of CTR-funded research.
1. Grantees have complete control ever this research
2. CTR grantees submit manuscripts to CTR at their own discretion. A CTR grantee is not required to make any CTR-suggested changes.
3. There is no evidence that CTR ever suppressed any research findings of any of its grantees. If there were problems with CTR-funded studies, CTR raise concerns, just as it did with other non-CTR funded studies, that were arguably flawed.
VII. CTR maintains Contact with several government and voluntary health organization. This contact ranges from joint funding of projects to coordination type meetings designed to avoid overlap in research programs.
A. Anticipated Plaintiff Position: CTR initiates and maintains contact with public health entities and voluntary agencies to influence independent research on smoking and he, health, to assist the tobacco industry in presenting a "good faith" image to the public and to Congress; and ultimately, to help the industry achieve its goal of convincing the public that a "real" scientific controversy exists concerning smoking and health.
1. As early as October 1954, CTR began plans to establish a liaison with the U.S. Public Health Department, other state bodies and volunteer organizations that were involved in or affected by the problems of smoking and health.
2. CTR utilized its contact with the Surgeon General's Advisory Committee (SGAC) in an attempt to alter the outcome of the 1964 Surgeon General's Report.
3. CTR assisted the tobacco industry in influencing "independent" smoking and health research by co-initiating the idea for and then funding research conducted through the American medical Association Education and Research and Foundation (AMA-ERF) Project for Research on Tobacco and Health.
4. The tobacco industry enlisted CTR, along with the AM, to Participate in the Joint Committee on Tobacco and Health, a project of government/industry cooperation. This project was originated by the industry to "re-open" the smoking and health controversy on a broader scale and to help preserve the industry from further "reckless and untimely" governmental regulatory actions against cigarettes.
5. The industry and CTR participated in HEW's Lung Cancer Task Force and the Tobacco Working Group (TWG) to influence the outcome of the programs and suppress the "unwarranted 'overkill' of propaganda" emanating from HEW.
6. CTR worked with the British Tobacco Research Council, Harrogate, and the Wissenschaftliebe - Forschungsstalle, Hamburg, so that it could influence the directions of their research and its results, slant their public statements in such a way as to promote the smoking and health controversy and present a favorable image to Congress of international "coordination" of research efforts by the tobacco industry.
B. Defense Response: CTR maintains contact with Public health entities and voluntary agencies in an effort to foster coordination, avoid duplication of research efforts and encourage fruitful and encourage investigation into the cause of human ailments that are reported to be statistically associated with smoking.
1. CTR's main concern was to avoid duplication of research efforts so as to make the most effective use of its funds.
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2. CTR was invited to participate with the Surgeon General's Advisory Committee because of CTR's recognized expertise in smoking and health research and because of the stature of its scientific director, Dr. C. Little.
3. In response to the Surgeon General's statement in January 1964 that more research was needed, the industry pledged funds to the AMA-ERF project to encourage the investigation of the many questions regarding the relationship, if any, between smoking and disease. Neither CTR nor the industry had any control aver the project's decision-making processes and the research projects were conducted completely independently without any "influence" from the industry.
4. The purpose of the Joint Committee on Tobacco and Health was to evaluate the current programs of the funding agencies and determine the gaps in research.
5. The Lung Cancer Task Force was established by the Secretary of HEW in February 1967 at the request of the President. It was a program designed to research how lung cancer could be prevented or controlled and primary efforts were given to the development of a less hazardous cigarette. CTR participated in the Lung Cancer Task Force and TWG programs as an advisor. It was expressly invited by HEW to provide such advice. Moreover, the groups were designed in such a manner that no one entity could influence the outcome.
6. Liaison was maintained between CTR and the European Councils to foster cooperation of research efforts.
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BROWN CTR ISSUES NOTEBOOK
TABLE OF CONTENTS
Industry's purpose in creating CTR 1
1. Industry's conception of CTR 1
2. Hiring of Hill & Knowlton 3
3. Primary purpose of CTR a
II. Public relations activities of CTR 26
1. CTR's role in making assurances of safety 27
2. CTR's role in creation and perpetuation of the smoking and health controversy 35
III. Purposes and objectives of CTR's research program 76
1. Research philosophy 76
2. Areas of research funded 84
3. B&W criticisms of CTR's research program 92
4. Other companies views of CTR's research program 101
5. Opinions of CTR as stated by industry counsel, TI and other scientists 110
IV.- industry's influence over CTR 114
1. Involvement of industry in selection of Scientific Director and the Scientific Advisory Board 114
2. Scientific Advisory Board members received CTR grants 119
3. Industry control of SAB public statements 120
4. Involvement of industry in hiring of CTR staff 124
5. Industry involvement in grant review 126
6. Role of Industry Technical Committee 133
7. Industry involvement in contract research 139
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V. Involvement of lawyers in CTR program 145
1. Lawyers maximized CTR's use in legislation and litigation 145
2. Lawyers controlled decision making process of CTR 150
3. Lawyers terminated grants 156
4. Lawyers designed research projects (Special Projects) 160
5. Lawyer involvement in day to day activities 165
VI. Publication and reporting of CTR funded research 169
1. CTR's influence over grantees 169
2. CTR's editing of grantees' research 173
3. Suppression of CTR funded research 177
VII. CTR's involvement with public health entities 188
1. CTR's liaison with the U.S. Public Health Department and other volunteer organizations 188
2. CTR's involvement with the 1964 SGAC 192
3. CTR's involvement in the AMA-ERF program 200
4. CTR's role in the Joint Committee on Tobacco and Health 208
5. CTR's participation in HEW's Lung Cancer Task Force 221
6. CTR's involvement with European organizations 225
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1. Creation
The Council for Tobacco Research (CTR), formerly the Tobacco Industry Research Committee (TIRC), was organized in 1954 by the chief officers of nine U.S. cigarette and tobacco products manufacturing companies and five growers of leaf tobacco and tobacco warehouse associations.'
Anticipated Plaintiff Position: CTR was created in response to the industry's public relations problems that arose in the early 1950s as a result of press coverage of studies that linked cigarette smoking to health problems. Despite the industry's public statements to the contrary, "the creation of this entity and the work performed was nothing but a hoax created for public relations purposes with no intention of seeking the truth." 2
Defense Response: CTR was created to fund research that would Investigate the questions that were being- raised as a result of studies concerning the purported health effects of cigarette smoking. It was not a hoax created for public relations purposes."
1. In late 1953, the industry conceived the idea of creating and funding a research-oriented--
1. Although the industry did not believe that these studies proved that cigarettes caused--
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