III. Big Tobacco and the Law

Marketing to Kids

For years, tobacco companies have claimed that they neither market to teenagers nor depend on them for decades of future profits. The tobacco documents used in the Minnesota State Attorney General's lawsuit against the companies and other documents that were released as a result of that suit disprove both of those claims.

Cigarette companies have long known which brands attract teenagers and the importance of capturing them as customers. In a 1987 Philip Morris interoffice memo discussing tactics to soften the blow of an upcoming excise tax increase, an executive writes, "You may recall from the article I sent you that Jeffrey Harris of MIT calculated, on the basis of the Lewin and Coate data, that the 1982-3 round of price increases caused two million adults to quit smoking and prevented 600,000 teenagers from starting to smoke. Those teenagers are now 18-21 years old, and since about 70 percent of 18-21 year-olds and 35 percent of older smokers smoke a PM brand, this means that 700,000 of those adult quitters had been PM smokers and 420,000 of the non-starters would have been PM smokers. Thus, if Harris is right, we were hit disproportionately hard. We don't need to have that happen again" <MN11591>.

A 1979 Philip Morris memo notes "Marlboro dominates in the 17 and younger age category, capturing over 50% of this market" <MN11808>.

Companies not only tracked their shares of the teenage market, they also sought to increase their cut of the pie, sometimes going so far as to design cigarette types targeted specifically at young teenagers. With regard to Marlboro's dominance, a Lorillard executive wrote in a 1978 memo: "The success of NEWPORT has been fantastic during the past few years. Our profile taken locally shows this brand being purchased by black people (all ages), young adults (usually college age), but the base of our business is the high school student. ... NEWPORT in the 1970's is turning into the Marlboro of the 60's and 70's. It is the 'In' brand to smoke if you want to be one of the group. Our problem is the younger consumer that does not desire a menthol cigarette. If that person desires a non-menthol, but wants to be part of the 'In group', he goes to Marlboro. Could we end the success story for Marlboro by furnishing the young adult consumers with a total category of 'In' brands? ... I think the time is right to develop a NEWPORT NATURAL (non-menthol) cigarette to attract the young adult consumer desiring a non-menthol product" <MN10195>.

RJR also attempted to encroach on Philip Morris' young clientele with its own Camel campaign. A 1975 memo recommends that the national expansion of "the successfully tested 'Meet the Turk' ad campaign and new Marlboro-type blend is another step to meet our marketing objective: To increase our young adult franchise. To ensure increased and longer-term growth for CAMEL FILTER the brand must increase its share penetration among the 14-24 age group which have a new set of more liberal values and which represent tomorrow's cigarette business." The memo suggests "patience, persistence, and consistency will be needed" as the brand shifts appeal from older to younger smokers <MN12865>.

Brown & Williamson was also in on the adolescent hunt, as a 1973 memo recognizes that "KOOL has shown little or no growth in share of users in the 26+ age group. Growth is from 16-25 year olds. At the present rate, a smoker in the 16-25 year age group will soon be three times as important to KOOL as prospect in any other broad age category. ... KOOL's stake in the 16-25 year old population segment is such that the value of this audience should be accurately weighted and reflected in current media programs. As a result, all magazines will be reviewed to see how efficiently they reach this group and other groups as well" <MN13820>.

As time went on, the tobacco industry began to realize that its image as a peddler of tobacco products to children was beginning to hurt the bottom line. As calls for restrictions on print advertisements, sampling and sports sponsorship became more frequent, the industry cooked up various public relations schemes to rebut compelling charges that it was marketing to kids.

Responsible Living

One of the industry's first major initiatives was the "Responsible Living Program," launched in September 1984. Through the Tobacco Institute, the companies published a booklet for parents and their teenagers entitled "Helping Youth Decide." The Tobacco Institute produced the publication in cooperation with the National Association of State Boards of Education (NASBE). It explained ways of speaking freely with teenagers about making "adult decisions," but contained no smoking-specific content.

To the public, the industry tried to portray its efforts as purely altruistic, with concern for children and parents at the fore. Reporting on responses to the Responsible Living Program, the Tobacco Institute claimed, "The anti-smokers were speechless. People genuinely interested in youth welfare were generous with praise and offers to help." Educators, civic leaders, Congressional members, the news media were all positive. Within two and a half months, more than 50,000 of the booklets had been "circulated to parents around the country." A presentation was made before the National Black Caucus of State Legislators and the Institute won a resolution endorsing the measure and suggesting that legislators encourage their member school boards to utilize "this unique resource" <TI0061487/1504>.

Internal documents suggest the industry had multiple motivations for the initiative. First, the industry gained credibility by collaborating with the NASBE. A June 1985 progress report noted, "We could only guess ... that because of the [National Association of State Boards of Education] partnership ... the program might be difficult for our adversaries to damn" <TI174575/4601>.

Second, as with its concurrent collaboration with fire service associations, the program was used to "butter up" potential allies as a first step to forming coalitions on a whole range of issues. The same progress report explains, "Meantime, consultants of ours have used the [booklet] with perhaps two dozen Hispanic groups ... in California and the Midwest ... as a way to get a foot in the door to talk about other issues" <TI174575/4601>.

Finally, and most importantly, the program was used as a direct lobbying tool in fights against various tobacco restrictions. Before the program was launched, the Institute and NASBE planned to send a letter and preview kit to "key state officials" <TI0173626/3628>. Lobbyists in Texas, Minnesota, Massachusetts and California successfully used the project to "help offset panels, to deal with sampling bills and to help fight excises earmarked for public education." In the face of "incipient proposals for smoking restrictions and a sampling ban," an industry representative "exhibited this current project" and the "Board asked for ten more copies of the booklet and tabled its proposals" <TI0061487/1504>.

The Fight Continues

By 1989, the industry had become even more nervous about pending anti-tobacco legislation and started to lay out plans for a more elaborate public relations campaign to show the industry's commitment to reducing teenage smoking. A Tobacco Institute "Tobacco Advertising Restrictions Working Group Report" noted that the industry had to " 'put its money where its mouth is.' In short, we recommend that the Institute undertake an enhanced program of activities on the youth smoking issue, including new tactics designed to create a more activist and credible image. The activities should be able to withstand scrutiny. ... We believe it is unlikely that the Institute's current activities could withstand such scrutiny" <ti0057367/7376>.

The same report listed several rhetorical concerns over this new initiative, the first of which was: "There is some risk that efforts to discourage youth smoking could decrease tobacco sales, both immediately and over the long term." The response was: "This is true. However, the group agreed that, in the absence of credible industry efforts to address the youth smoking issue, various types of potential legislative and regulatory action likely would have a much more serious impact upon tobacco sales" <ti0057367/7376>.

Another concern of the group was that "the youth smoking issue is not a substantial problem for the industry. No legislative battles have been lost on this issue to date." The response: "We believe this attitude to be short-sighted. The strategy on youth smoking has not so much become 'broke,' as simply inadequate for the job.  ... Our allies and potential allies need credible arguments to defend the industry on the issue; action is called for if the industry is to maintain its record of legislative success" <ti0057367/7376>. The youth smoking issue tarnished the industry's image and was being used "to restrict tobacco advertising and promotion, ... support excise tax legislation, and generally as a weapon to attack the industry's image and credibility." Somehow the industry needed "to discourage unnecessary and unfair restrictions that, directly or indirectly, adversely affect the legitimate and truthful brand advertising, promotional and marketing practices of the cigarette industry" <ti0057367/7376>.

Thus, the working group developed "Strategy III," intended to "demonstrate that the industry does not want children to use its products and has taken positive steps to discourage such use" <ti0057367/7376>.

Specific goals were to "Provide ammunition for tobacco allies (legislators and others). ... Enhance the industry's overall ability to gain and maintain allies. ... Help build the industry's image by demonstrating a sense of responsibility and corporate citizenship. ... Enhance credibility by formulating strong programs and implementing them aggressively" <ti0057367/7376>.

Direct tactics included a stronger voluntary youth practices code, support for introduction and enforcement of minimum smoking age laws, a retailer awareness program "to develop retailers as coalition partners in avoiding severe restrictions that could adversely impact their businesses (to a much greater degree than would the immediate loss in sales to minors)," more educational materials, coalition partners "from groups such as teachers' unions, guidance counselor organizations and the PTA, to convenience store chains and local chambers of commerce," media relations supported by coalition allies, research into smoking rates, and the causes of youth smoking.

Throughout the program, the Institute was concerned about the public's perception of its new programs. A strategy paper documents plans to commission focus groups to " 'market test' the opinions and sentiments of opinion leaders and teachers, etc.," since "there needs to be either real ways to solve the problem or at least the perception that the problem is being addressed" <ti0323525/3529>.

-- David Tannenbaum

Nicoteen Manipulation

Key documents used by the Minnesota state attorney general's office in its recent litigation show that the tobacco companies altered nicotine concentrations in cigarettes and that they varied those levels to achieve market share.

A 1963 memo from a Brown & Williamson researcher to a B.A.T. Co. official answers the question, "How might the level of [nicotine and sugars] be varied to win consumer preference for our brands?" The researcher concludes that "a rough examination of sales patterns would indicate the probability of a correlation between consumer acceptance and nicotine level," and reports that "we have a research program in progress to obtain, by genetic means, any level of nicotine desired."

"I think we can say even now that we can regulate, fairly precisely, the nicotine and sugar levels to almost any desired level management might require," the researcher concludes <MN10856>.

Brown & Williamson later discovered methods of genetic manipulation and added the resulting high-nicotine tobacco (Y1) to their cigarettes. An undated Brown & Williamson document notes "Y1 Product Unique genetically engineered tobacco delivering more taste/satisfaction at a lower tar level versus competition. Achieved through increased nicotine content versus traditional tobaccos. Lights/Ultra products contain 10% Y1" <MN13671>.

Companies also found other methods of increasing nicotine content. A Philip Morris document from 1966 reports that adding ammonia to cigarettes enhanced nicotine delivery by raising the pH level <MN3685>. A 1973 study from the Lorillard company concludes, "The smoke pH for Kool and Marlboro are 7.12 and 6.98 respectively confirming the relationship between high smoke pH and cigarette sales increase" <MN10005>.

With Full Knowledge

The Minnesota documents also show that the tobacco companies considered nicotine a drug, and cigarettes a convenient delivery device. These categorizations have been vigorously denied by the industry as the tobacco companies seek to avoid regulation of cigarettes by the Food and Drug Administration.

Recognizing cigarettes as a drug, one undated B.A.T. "marketing scenario" states: "A cigarette as a Ôdrug' administration system for public use has very very significant advantages: 1) Speed. Within 10 seconds of starting to smoke, nicotine is available in the brain. Other Ôdrugs' such as marijuana, amphetamines, and alcohol are slower and may be mood dependent" <MN10683>.

A 1972 RJR memo noted that "In a sense, the tobacco industry may be thought of as being a specialized, highly ritualized and stylized segment of the pharmaceutical industry." The same memo concludes, "Our industry is then based upon design, manufacture and sale of attractive dosage forms of nicotine, and our company's position in our industry is determined by our ability to produce dosage forms of nicotine which have more overall value, tangible or intangible, to the consumer than those of our competitors. Happily for the tobacco industry, nicotine is both habituating and unique" <MN12408>.

Naturally, this discussion of cigarettes as a type of drug led a Philip Morris scientist to ask in 1969, "Do we really want to tout cigarette smoke as a drug? It is, of course, but there are dangerous F.D.A. implications to having such conceptualization go beyond these walls" <MN10539>.

The Not So Missing Link

For years the tobacco industry has claimed that smoking has not been conclusively linked to lung cancer. The Minnesota documents show that the industry internally acknowledged such a link and knew a lot more than it publicly admitted.

Companies were certainly aware of cancer research being done all over the world, as in 1958 B.A.T. scientists visited the United States and Canada and found "With one exception, the individuals whom we met believed that smoking causes lung cancer if by Ôcausation' we mean any chain of events which leads finally to lung cancer and which involves smoking as an indispensable link" <MN11028>.

The industry's own research and its sponsored research gave credence to this view. A 1959 RJR document reported that the RJR Company Research Department "corroborated the published findings. Some thirty-odd polycyclic hydrocarbons have since been similarly characterized in these laboratories. Of these, eight are carcinogenic to mouse epidermis. Cholanthrene, a potent carcinogen, is one of three not yet reported by other investigators" <MN12418>. A 1961 report from Arthur D. Little Inc. to Liggett & Myers notes on the front page that "There are biologically active materials present in cigarette tobacco. These are cancer causing, cancer promoting, poisonous, stimulating, pleasurable and flavorful" <MN11561>.

No-Search Research

Claims that industry research was directed at finding the truth about the causes of cancer are also belied by the internal documents. A 1970 Philip Morris memo from research director Dr. Helmut Wakeham reads, "It has been stated that [the Center for Tobacco Research, CTR] is a program to find out Ôthe truth about smoking and health.' What is truth to one is false to another. CTR and the Industry have publicly and frequently denied what others find as Ôtruth.' Let's face it. We are interested in evidence which we believe denies the allegation that cigarette smoking causes diseases. Both lawyers and scientists will agree that this task is extremely difficult, if not impossible" <MN11586>.

In fact, the main purpose of CTR seems not to have been scientific fact-finding at all. Minutes of a 1978 meeting of company vice presidents indicate that the CTR "was set up as an industry Ôshield.'" According to the minutes, it was suggested that the industry "might need to have Ôbaskets' into which research projects can be categorized and supported. There is a ÔCTR basket' which must be maintained for ÔPR' purposes" <PM2045752106/2110>.

And, much of industry research was not directed by scientists. A 1978 handwritten memo from the CEO of Lorillard states, "We have once again Ôabdicated' the scientific research directional management of the industry to the ÔLawyers' with virtually no involvement on the part of scientific or business management side of business" <MN10165>.

Further evidence that scientists were at the mercy of the attorneys is found in an extract from a Tobacco Research Council Letter dated March 24, 1969. The author of the letter "recently had a discussion with [Professor J.H.] Burn [a scientific consultant] about the position and he told me that Ed. Jacob [an industry lawyer] arrived on his doorstep in Oxford one day, apparently without any previous appointment, sat down with Burn and got Burn to make a certain number of amendments to his paper there and then; [sic] pocketed the only copy of what is apparently to be the final draft, and departed" <BW680243533>.

Lawyers monitored research out of fear that scientific documents could hurt the industry in litigation. A 1990 agenda prepared by in-house counsel for B.A.T. and titled "Research Documents," deals with "Concern about volume of research documentation spread around the Group Discovery. Difficulties faced by author company in explaining documents in a foreign court." Proposed precautions include restricting "current flow of research related documents by ensuring that all telexes, letters, facsimiles, minutes and memoranda sent by scientists in one research centre to scientists in an overseas research centre go through and are approved by the Head of Research in the sending company. Improve quality of documents by educating scientists in each research centre about document writing/document creation. Regular lawyer reviews and audits of scientific documents produced in each company. Arrange a system to ensure that all research related conference minutes involving representatives of more than one Group company are vetted by the lawyer for the company issuing the minutes before the minutes are sent out" <BW681511202/1203>.

Even favorable research that was conducted by the industry was not necessarily published as the work of industry scientists. A handwritten draft for a position paper on research to be conducted by companies belonging to the German Association of the Cigarette Industry, the VdC, states, "Should any results be published, arrangements should be made to publish them by scientists outside the industry so that no doubts can be raised" <PM0000017644/7647>.

-- David Tannenbaum