In a landmark ruling nearly a decade ago, a federal judge ordered tobacco companies to stop lying.
After listening to 84 witnesses and perusing tens of thousands of exhibits, U.S. District Judge Gladys Kessler of the District of Columbia took a year to write a 1,652-page opinion detailing the companies’ elaborate strategy to deny the harmful effects of smoking.
“In short, [the companies] have marketed and sold their lethal product with zeal, with deception, with a single-minded focus on their financial success, and without regard for the human tragedy or social costs that success exacted,” Kessler wrote in United States of America v. Philip Morris USA.
Kessler noted that the Justice Department, in a racketeering lawsuit, had presented “overwhelming evidence” of a conspiracy to defraud the public. She ordered the companies to take a number of actions, including ceasing to claim there was such a thing as a low-tar cigarette that reduced the risk of disease. The evidence showed this simply was not true.
Yet in about a dozen pending lawsuits, Philip Morris continues to do just that. It routinely argues that the nation’s top-selling cigarette, once known as Marlboro Lights and now called Marlboro Gold, reduces the risk of cancer.
To find scientists willing to make this claim, Philip Morris turned to consultants for the chemical industry. The experts Philip Morris hired work for firms whose scientists regularly contend in medical journals, courtrooms, and regulatory arenas that their clients’ chemical products pose little or no health risks to the public. The firms have been instrumental in delaying new regulations by criticizing the work of other scientists, and emphasizing the doubt inherent in health science. The resultant uncertainty has helped delay attempts by the U.S. Environmental Protection Agency to crack down on ubiquitous chemicals with known dangers, such as formaldehyde, arsenic, and hexavalent chromium.
The irony in this arrangement is that the tobacco industry pioneered such tactics. “The tobacco industry wrote the playbook for the rest of the industries,” said Matt Myers, president of the Campaign for Tobacco-Free Kids. “Whether it’s the chemical industry, whether its climate change … you see it in industry after industry.” Now, it’s hiring consultants who took its techniques and pushed them further in other industries, relying on their experience to contest the scientific consensus on the dangers of low-tar cigarettes.
The industry’s tactics continue to have catastrophic consequences. The Centers for Disease Control and Prevention attribute 480,000 deaths each year to smoking, equal to one in every five deaths. Since 1964, when the U.S. Surgeon General warned that smoking caused cancer, the government estimates that tobacco has killed more than 20 million Americans. That is 15 times the number of Americans who have perished in all wars combined.
Although millions have quit, smoking continues to be the most preventable cause of death in the United States today.
Redesigned cigarettes
At the turn of the 20th century, cigarette smoking was not yet in vogue. Lung cancer was so rare that some doctors had never seen a case. But scenes of everyone lighting up in Mad Men are no exaggeration. By 1955, two-thirds of men and almost one-third of women in the United States smoked cigarettes. Eventually, lung cancer became the leading killer among cancers in the United States.
Medical researchers noticed the parallel rise. In December 1952, a brief article in Readers Digest sent shock waves by summing up research linking smoking to an epidemic of lung cancer. A year later Time reported that mice painted with tobacco tar developed tumors. A medical researcher told the magazine that it was now “beyond any doubt” that cigarettes cause cancer.
Panic ensued at the tobacco companies. On December 14, 1953, the CEOs of the six largest cigarette makers met secretly at New York’s Plaza Hotel to discuss a strategy for countering the bad publicity. What developed over time, as Kessler’s opinion details, was a joint strategy to twist science and mislead the public about the dangers of smoking.
The industry announced that it was forming a research committee to look into the matter. It hired independent scientists such as cancer researcher Clarence Cook Little to do interviews, insisting that there was no proof that cigarettes cause cancer.
In reality, scientific evidence that cigarettes cause cancer was becoming overwhelming. In 1964, the Surgeon General seemed to put an end to any controversy when he released the report of an independent advisory committee that had considered more than 7,000 published articles.
The Surgeon General’s warning had a profound effect on the public, prompting many smokers to quit. But the tobacco companies and their scientists would continue to deny that cigarettes cause cancer for another 35 years.
To discourage smokers from quitting, companies redesigned their cigarettes to seem safer. First, they added filters. Then they introduced “low-tar” cigarettes. Within a few years, these cigarettes dominated the market. Marlboro Lights, which debuted in 1971, became the nation’s best-selling cigarette.
Tobacco companies knew from extensive internal research that smokers were addicted to nicotine and needed a certain amount of it every day to satisfy their habit. Given a “low-tar” cigarette, they would change the way they smoked to get their fix.
With the passage of a new law, the Federal Trade Commission in 1967 began testing all cigarette brands on special smoking machines that measured the amount of tar inhaled. Cigarettes were reformulated, not so much to reduce tar but to fool the machines, according to a National Cancer Institute report. Tiny holes were cut in the cigarette paper to vent tar when a cigarette was smoked by a machine. Those holes, however, didn’t reduce the tar inhaled by smokers.
“If you reduce the amount of nicotine coming through, the person changes a pattern of it. They take bigger puffs, they take deeper puffs, they take longer puffs, they smoke more cigarettes per day to get the amount of nicotine they are seeking to satisfy their addiction,” said Dr. David Burns, a retired medical professor at the University of California, San Diego, who edited some of the Surgeon General’s reports on smoking.
Burns was testifying for the plaintiffs in a recent St. Louis class-action trial.
Also testifying was William Farone, the research director at Philip Morris from 1977 to 1984. He said studies done at the company even before he was hired showed that smokers who switched to light cigarettes would take deeper puffs to get the same amount of nicotine they’d received from regular ones. Farone said other than those tiny holes in the paper, the differences between a Marlboro Red and a Marlboro Light were small.
Public-health scientists would not figure this out for several more years. A study by the American Cancer Society published in 1995 found that the rate of lung cancer deaths among 200,000 smokers actually went up after light cigarettes began dominating sales. Experts believe that the low-burning temperature of a low-tar cigarette and deeper puffs by smokers allow more carcinogens to go deeper into the lungs.
‘Corrective statements’ ordered
The rewards for disputing the scientific consensus are high while the risks are low. The Justice Department’s racketeering lawsuit had sought to have the tobacco industry repay illegal profits of $480 billion. But an appellate court ruled that federal racketeering laws didn’t allow for fines for past behavior.
Judge Kessler’s only power was to order cigarette makers to stop engaging in illegal behavior. Companies appealed her order to quit making claims about low-tar cigarettes, arguing it violated their First Amendment rights. But Kessler’s ruling was upheld.
Nonetheless, Philip Morris hired scientists from the consulting firms Gradient Corp. and Ramboll Environ to testify in lawsuits that so-called low-tar cigarettes are safer than regular ones.
Sharon Eubanks, the former Justice Department attorney who led the lawsuit, believes Philip Morris is violating Kessler’s order. The order forbids public statements declaring that low-tar cigarettes have health benefits, even if such statements come from a Philip Morris consultant.
To enforce the order, the Justice Department would have to file a motion with Kessler. A department spokesman would not comment on the case. Calls to Philip Morris seeking comment were not returned.
After the case wound through appeals, Kessler issued a revised opinion and order in February reiterating that tobacco companies must make the following “corrective statements” on their websites and in advertising:
- Many smokers switch to low-tar and light cigarettes rather than quitting because they think low-tar and light cigarettes are less harmful. They are not.
- “Low tar” and “light” cigarette smokers inhale essentially the same amount of tar and nicotine as they would from regular cigarettes.
- All cigarettes cause cancer, lung disease, heart attacks, and premature death — lights, low tar, ultra lights, and naturals. There is no safe cigarette.
A decade after the original order, and five years after Kessler first issued these statements, tobacco companies are still appealing her ruling. None has printed the statements.
Congress agreed with Kessler’s original findings, and in 2009 passed a law also forbidding the tobacco companies from calling cigarettes “light” or “low-tar” without the approval of the U.S. Food and Drug Administration. But Philip Morris says research done since Kessler’s 2006 order justifies the company’s claims that such cigarettes are safer than regular ones.
‘Very unusual position’
Peter Valberg of Gradient Corp. was Philip Morris’s star witness in a Boston class-action lawsuit that went to trial last October after dragging on for 17 years. He has impressive credentials, having been a faculty member at the Harvard School of Public Health for 24 years and served as a consultant to the EPA and the Justice Department. Valberg has testified that he had help with his research from another principal scientist at Gradient, Julie Goodman.
Valberg presented a slide show with data showing that Marlboro Lights delivered less tar to smokers. It made sense, he concluded, that the cigarettes also reduced the risk of disease.
Some of Valberg’s findings were based on his own unpublished analysis of public data. But the most persuasive evidence came from a study underwritten by Philip Morris.
Published two years after Kessler’s decision, the 24-week study analyzed urine samples of about 70 smokers who switched from full-flavored Marlboro Reds to Marlboro Lights. The test revealed that their average nicotine levels dropped significantly within six months.
Screen shot/Congressional hearing
There was another aspect of the study that Valberg did not mention. Researchers also tracked nicotine levels of Marlboro Red smokers who did not switch. Known as the “control group,” these smokers were akin to patients given sugar pills, or placebos, in a drug trial. In a clinical trial, a control group allows researchers to see if a new drug is any better than a placebo. In this experiment, it enabled researchers to see if switching to Marlboro Lights was any better than not switching.
In fact, switching was no better. Nicotine levels fell for all smokers. The researchers said in the published study that being in a controlled environment might have influenced how people smoked.
Asked about the control group in cross-examination, Valberg seemed flustered. He argued that the goal of the study was to look at what happened to smokers who switched, not to compare them to those who did not.
Dr. Peter Shields, a tobacco expert at Ohio State University Comprehensive Cancer Center who analyzed Valberg’s findings for lawyers suing Philip Morris, said the study actually supports other research showing light cigarettes have no health benefits.
“Dr. Valberg is taking a very unusual position in tobacco class-action suit cases claiming that light cigarettes result in a 25-percent reduction in lung cancer risk in contrast to a scientific consensus that they increase lung cancer risk,” Shields said.
Valberg’s testimony contradicts the findings of the Surgeon General, the National Academy of Sciences, and the National Cancer Institute.
In 2001, a panel of experts wrote a 236-page report for the National Cancer Institute, saying, “In fact, the use of these cigarettes may be partly responsible for the increase in lung cancer for long-term smokers who have switched to the low-tar/low-nicotine brands.”
Another consultant for Philip Morris and the chemical industry, Kenneth Mundt of Ramboll Environ, has attacked the NCI report. Mundt did not testify at the Boston trial but has written expert reports in other lawsuits saying that the conclusions of some of the nation’s leading tobacco experts, including the authors of the NCI report, “fail to address the totality of relevant evidence and largely remain unsubstantiated.”
Dr. Jonathan Samet, a professor at the University of Southern California’s medical school who was asked by the NCI to be one of the reviewers of its report, said the findings went through rigorous peer review. Samet himself chaired a panel of 25 experts who met for 10 days in 2002 to hash out a report on smoking for the International Agency for Research on Cancer, an arm of the World Health Organization.
Samet said the clear consensus was that low-tar cigarettes do not reduce the risk of disease.
Stanton Glantz, director of the Center for Tobacco Control Research and Education at the University of California, San Francisco, was blunter about Mundt’s attack on the NCI report. “That’s ridiculous,” he said. “Those things are put through the peer-review grinder. If anything, they are too cautious.” Valberg and Mundt did not respond to interview requests.
The Philip Morris study was also peer-reviewed, appearing in the journal Regulatory Toxicology and Pharmocology, which has a record of publishing research paid for by the chemical industry.
The journal’s editor, Gio B. Gori, has a controversial history, first as a NCI deputy director and later as a tobacco industry consultant. In 1976, while at the NCI, Gori made national news when he claimed people could smoke as many as two packs of low-tar cigarettes a day with minimum risk of cancer.
Later, Gori was paid by Brown & Williamson to write several letters to scientific journals attacking other researchers’ work. He also penned a manuscript in 1987 that started with this claim: “During the last decade and especially in the last few years scientific evidence has been gradually emerging, and now indicates that smoking may in fact provide a net contribution in the prevention of certain diseases and in extending life expectancy.”
After reviewing the manuscript, another paid consultant, Peter Lee, wrote a confidential letter to a corporate officer at British American Tobacco, saying, “I think the paper is pretty valueless, partly as it is completely unbalanced, partly as the (many) wild claims made are not substantiated by detailed evidence.”
A critique by a BAT attorney suggests that the company closely monitored the work of its consultants: “It obviously needs to be honed into a first-class scientific paper. There seems to be a fairly widespread opinion that that will be difficult to do.”
Gori did not respond to phone messages.
In February, Superior Court Judge Edward Leibensperger ruled in favor of the plaintiffs in the Boston class-action lawsuit and ordered Philip Morris to pay $4.9 million in damages. The judge wrote:
“Dr. Valberg’s analysis of the data provided by the published studies was shown to be inconsistent and contrary to the consensus of the scientific community. Dr. Valberg’s analysis has never been published or subjected to peer review. I find that the testimony of Dr. Shields was far more persuasive and credible than the testimony of Dr. Valberg.”
It’s not the first time Valberg’s work has come under attack. In 2008, Valberg agreed to try to publish scientific articles based on an asbestos defense lawyer’s theory that smoking causes mesothelioma, a rare cancer virtually always linked to asbestos exposure. The articles could have helped the lawyer win lawsuits, but peer reviewers attacked the manuscript and recommended its rejection.
‘That’s not science’
Philip Morris’ latest claims in court that low-tar cigarettes are safer fail to account for the industry’s own internal research. Still, the company has proven extremely effective at defending itself against legal claims brought by smokers. According to Philip Morris, of the 149 smoker lawsuits that have gone to trial since 1999, verdicts have gone in the company’s favor 77 times. The company says it has paid out about $467 million in judgments and interest. Its efforts to fund research to support its claims, and to hire experts willing to testify in support of them, may be one reason for its success in persuading juries not to hold it liable more often.
Dr. Neal Benowitz, a professor at the University of California, San Francisco, who did early research on low-tar cigarettes, said testifying that light cigarettes are safer is so at odds with the scientific consensus that it would likely damage the reputation of a tobacco researcher. But Philip Morris doesn’t hire scientists who’ve devoted their careers to studying tobacco. “Valberg is not someone who’s known in the tobacco research area,” Benowitz said. “I presume it’s not affecting his reputation.”
“These people are not scientists,” said Glantz, of the Center for Tobacco Control Research and Education. “They are public-relations people who happen to have degrees in science. These are people who make their living producing results that their clients want. And that’s not science.”