Firms’ Secrecy on Tobacco Hazards Assailed

Secret tobacco industry documents about nicotine addiction and the dangers of smoking could have provided a “valuable public health benefit” and saved the government “years, decades” in its smoking information campaigns if the industry had released the information, according to a sworn statement in Florida’s anti-smoking lawsuit.

“We see littered throughout tobacco industry documents dating back to the 1960s that they understood clearly that their business was a drug delivery business,” said Jack E. Henningfield, the former chief of the clinical pharmacology research branch of the federal government’s National Institute on Drug Abuse, in the statement filed in a West Palm Beach court late Friday and provided to The Times. Had such information been available, in the view of Henningfield and other anti-smoking activists, tobacco sales would have been far more stringently regulated decades ago.

In particular, he cited an internal 1963 Brown & Williamson Tobacco Corp. document in which the company’s general counsel, Addison Yeaman, wrote, “Nicotine is addictive. We are, then, in the business of selling nicotine, an addictive drug effective in the release of stress mechanisms.” That document came to light in 1994 when it was released by a former Brown & Williamson paralegal who stole nearly 1,400 pages of explosive company records and research data.

Tabacco industry representatives were unavailable for comment Sunday.

Because the essence of Florida’s suit is the same as those filed by 19 other states, Los Angeles County and a score of other California counties, including San Francisco, the assessments of industry documents made by Henningfield and the other experts are potentially relevant in all the cases.

“It’s frustrating from a public health perspective because there was information out there that could have helped us in our efforts to keep kids from getting addicted,” Henningfield said.

Henningfield also said that if the government had known what the industry knew years ago, it would have regulated cigarette companies earlier, similar to the way it regulates manufacturers of pharmaceuticals and other drugs. Last year, the Food and Drug Administration for the first time declared that nicotine is an addictive drug, and enacted regulations calling for changes in the way that cigarettes and smokeless tobacco are marketed and distributed. The industry has challenged the regulations’ legitimacy in a North Carolina federal court.

Henningfield noted that the industry did not provide information, such as the Yeaman memo, to federal officials preparing the landmark 1964 surgeon general’s report on tobacco use. That was the first government study to say that smoking was a danger to health, but it stopped short of saying that nicotine was addictive. When he was working on the surgeon general’s reports from 1986 to 1988, Henningfield said, “I should have had this kind of information, and it wasn’t given to me.”

The internal industry documents “absolutely” show “a pattern of conscious disregard by the tobacco industry for the health and safety of the American public.” he said.

Henningfield, who left government service last year and is now an associate professor at Johns Hopkins School of Medicine in Baltimore, reviewed a bevy of documents as a plaintiffs’ expert in Florida’s lawsuit to recoup billions of dollars spent treating people with smoking-related illnesses. The case is scheduled for trial in August.

Henningfield’s statement was among a massive number of documents filed before the start of the trial as the plaintiffs attempt to prove that they should be allowed to seek punitive damages. Sworn statements also were submitted by several other government officials, as well as experts on legal and scientific ethics.

Dr. Victor Roggli, a Duke University pathologist, described in his statement several instances in which he said the cigarette industry suppressed scientific studies that were potentially harmful to the industry. And John Freeman, a legal ethics expert from the University of South Carolina Law School, testified in writing that industry lawyers had played a role in suppressing evidence.

Most of the documents referred to have been written about already in The Times and elsewhere. But the statements provide a partial blueprint of how plaintiffs’ lawyers will try to use the documents to convince judges and juries that cigarette companies willfully suppressed information about the dangers of smoking so they could continue to market their products for large profits.

Some of the documents--including the Yeaman memo--were used in a case last summer in which a Jacksonville, Fla., jury ordered Brown & Williamson to pay $750,000 in damages to Grady Carter, a lung cancer victim. Some jurors said afterward that the documents, whose admission in the trial the company had vigorously opposed, had a big impact on them. The company has appealed the verdict.

A number of the documents submitted Friday have not been made public previously and were filed under seal, said Florida’s special counsels Ronald L. Motley and J. Anderson Berly III of Charleston, S.C.

It is anticipated that industry lawyers will contest vigorously the interpretations of the documents by the plaintiffs’ experts.

Henningfield said internal documents from several companies show that the industry assumed and took for granted that “nicotine was addictive and that’s why people smoke,” and that it made marketing decisions based on that premise. Henningfield said documents from various companies “are remarkably consistent” on key points: “They want to know exactly what nicotine does, so they know what to hang their marketing on.”

At the heart of the Florida case and those filed by the other states is the contention that the cigarette companies have known since the 1950s that their products endangered people’s health. In 1954, the industry published in hundreds of newspapers across the country a position paper called the “Frank Statement,” in which the companies pledged to undertake independent research and vowed that “public health was paramount over every other business interest.”

“It’s false,” Henningfield said. “The frank statement is a frank lie when you consider the evidence of their own documents.”

John M. Pinney, the former director of the Health and Human Services Department’s Office on Smoking and Health in the Carter administration, said, “I think they were lying . . . to me and to the public what they knew and about what they--what they felt their responsibilities were.”

Pinney also said the companies’ secret documents “completely contradict” what industry officials told him when he was a government official. “Lying” by industry officials, he said, retarded the government’s ability to restrict the advertising of cigarettes to children.

Pinney edited a number of U.S. surgeon general reports on smoking issues. He said the federal government was unable to get industry executives to cooperate in devising a program to keep children from smoking, despite the fact that each of the executives he contacted had already said publicly that he did not want children to smoke.

Several “cited advice of counsel . . . that this would somehow constitute an antitrust action,” Pinney said, “and they were afraid they would be violating the law if they joined together to do anything to prevent kids from smoking.”

Meanwhile, attorneys for Philip Morris, the nation’s largest cigarette manufacturer, and a trade organization, Associated Industries of Florida, have asked the U.S. Supreme Court to review a June 1996 Florida Supreme Court decision upholding the bulk of a state law that makes it easier for Florida to sue the tobacco industry. They called it “a classic example of bad law adopted to attack a group of unpopular defendants.”

The law strips the industry of certain traditional defenses that it normally would be able to use in a lawsuit.