Burning Mad Tobacco Industry
Turns Heat on Major News Media

On June 30, Brown & Williamson Tobacco Corporation sent out a news release claiming victory in obtaining a "U.S. Circuit Court" order directing USA Today and reporter Doug Levy to provide the tobacco company with copies of leaked documents that it claims were "stolen" from one of its law firms. Brown & Williamson is taking Levy and six other journalists to court in an effort to obtain copies of the documents that have created a political and public relations nightmare for the tobacco industry.

Unfortunately for the Louisville, KY-based company, it missed one of its marks. The judge of the court (a Virginia county court, not a federal court) rescinded his order when he learned that USA Today never received a subpoena. According to Brown & Williamson spokesperson Tom Fitzgerald, the company delivered its subpoena to a wrong address.

The company received even greater humiliation on June 6 when U.S. District Court Judge Harold H. Greene quashed subpoenas requesting access to documents in the possession of U.S. Rep Henry Waxman (D-Calif), chairman of the Subcommittee on Health and Environment, which is investigating the tobacco industry, and U.S. Rep Ron Wyden (D-Oregon), another member of the subcommittee.

At issue are hundreds of documents the cigarette company says are protected by attorney-client privilege. The documents purport to show that the company conducted secret research decades ago and that the research showed smoking is hazardous and nicotine is addicting. They also purport to show that company executives chose to hide the research while launching a public-relations campaign aimed at convincing the public that there is no scientific proof smoking is either unhealthy or addicting.

In his ruling, Judge Greene noted that despite the tobacco company's allegation of theft, no criminal charges were ever filed against Merrell Williams, the former paralegal who Brown & Williamson alleges stole the documents. He characterized the subpoenas as "so high-handed a course of conduct, and one so patently crafted to harass those who would reveal facts concerning B&W's knowledge of the health hazards inherent in tobacco."

According to Greene, the dispute is "over documents which may reveal that the Brown & Williamson tobacco company concealed for decades that it knew its products to be both health hazards and addictive. The subpoenas are the means by which the company is seeking to intimidate, and in a sense to punish, both Dr. Williams, the discoverer of evidence of this possible concealment, and the national legislators who are seeking to investigate the subject further and bring the results to the attention of the Congress and the public."

In considering Brown & Williamson's claim that it is merely trying "to gain control of property that was stolen or obtained in violation of an attorney-client privilege," the judge based his ruling on another perspective. The documents, he wrote, may be evidence that supports: "a whistle blower's claim that the tobacco company concealed from its customers and the American public the truth regarding the health hazards of tobacco products, and that he was merely bringing them to the attention of those who could deal with this menace. With the situation in that posture, to accept blindly the B&W 'stolen goods' argument would be to set a precedent at odds with the law, with equity, and with the public interest.

The cigarette company quickly denounced the judge's ruling, claiming that it put Congress "above the law," and said it would appeal the ruling. As of this writing, no rulings have been obtained in motions to quash the subpoenas that were served on members of the news media. In addition to Levy of USA Today, they include Philip J. Hilts of the New York Times, John Schwartz of the Washington Post, Richard Harris of National Public Radio, Claudia MacLechlan of the National Law Journal, Linda Douglas of CBS News, and Richard A. Daynard, publisher and editor of two newsletters on tobacco litigation.

David A. Kessler, MD, JD commissioner of the U.S. Food and Drug Administration, considers these documents fair game for public debate: "The release of company documents... has opened a window on what some senior tobacco officials knew about nicotine's physiological and addictive properties, as much as 30 years ago."

Brown & Williamson is accusing the news media of quoting select portions of the documents "out of context in an effort to distort B&W's position." According to a May 16 Brown & Williamson news release, the company "believes the wholesale marketing of these stolen documents to certain members of Congress and the media suggests that an individual is attempting to deliberately damage the company in addition to violating the Constitutional rights which protect attorney-client privilege." And in the June 30 news release, the company argues that "The First Amendment... does not immunize the media from lawful process no [sic] more than it protects any member of the public. No one... is entitled under the First Amendment to retain stolen documents."

However, according to Adam Liptak, a lawyer for the New York Times, Brown & Williamson is seeking "unpublished information gathered in the course of journalistic activities, as well as materials that may tend to identify a confidential source. Brown & Williamson is not entitled to this information under the shield laws and the First Amendment."

The effects of the subpoenas on the lives of the journalists have been mixed. Harris says the writ has had no effect on the way he or NPR are covering the tobacco beat. "I've gotten a tremendous amount of support from my editors and management all the way up, who tell me to `pursue, pursue.'" Levy says Brown & Williamson's legal maneuver has caused "only a brief interruption of my normal work routine." He's letting the newspaper's lawyers handle it while "continuing to do my job gathering and reporting the news." However, Hilts says the subpoena has had a bit of a chilling effect. It has made some editors "nervous" and getting a tobacco story cleared requires more time and effort. "However, the Times is backing me up and remains determined to continue publishing tobacco news stories," he says. "If that were not the case, I'd be miserable. At times you feel very upset, but then you realize that that's the way these tobacco guys work so you just have to deal with it." Because the District of Columbia has a good shield law, he's optimistic the subpoena will be quashed.

The tobacco company's pugnacity over the leakage of its internal documents may be due largely to the 1992 U.S. Supreme Court decision in Rose Cipollone's suit against three tobacco companies. The court ruled that plaintiffs can sue cigarette makers for breaching their legal duty not to deceive customers if plaintiffs can prove the companies lied or deliberately concealed facts about the health effects of smoking. While the tobacco industry boasts that it has not paid a dime after more than 300 law suits in 40 years, the availability of documents that prove the industry deliberately deceived the public might set off an avalanche of successful lawsuits that could bankrupt even the wealthiest of the tobacco giants.

In addition to the subpoenas, the tobacco industry is fighting back with libel suits and a massive advertising campaign to discredit reporters and the scientists they quote. On March 24, Philip Morris filed a $10 billion (with a "b") libel suit against ABC News for a Day One report that alleged tobacco companies are rigging nicotine levels to hook smokers. Philip Morris and other companies vehemently deny that they artificially increase the nicotine content of cigarettes. They say they only replace nicotine that has been lost in the production process. Walt Bogdanich, producer of the Day One report, would not comment about the suit. However, he says that Day One is "not going to stop covering the news about smoking and health."

"Philip Morris' righteous rage would be more credible were it not for the duplicity revealed by documents from within the company itself," says a New York Times editorial on April 2. It then described a study that Congress "pried loose" from Philip Morris that demonstrated the addictive effects of nicotine in rats. The study was carried out in 1983 five years before the U.S. Surgeon General declared nicotine an addictive substance. However, the cigarette company suppressed it and blocked its publication.

Some reporters have found out how dangerous it can be to make any substantial error when reporting stories critical of the tobacco industry. In 1988, newsman Walter Jacobson (now at the Fox TV station in Chicago) and CBS Chicago affiliate WBBM-TV lost a $3-million libel suit brought by Brown & Williamson for a news report that claimed the cigarette company followed an advertising strategy for getting children to smoke.

In the past, the tobacco industry preferred friendly but persistent persuasion to keeping the media on its side, only occasionally taking off its gloves to handle offending journalists. Paul Raeburn, science editor for Associated Press, says in his experience tobacco industry spokespersons for the most part have behaved very professionally and had been responsive to his inquiries even though they objected to some of his stories. Recently, however, some have not responded to his information requests, and it appears he has been removed from their mailing lists.

He does recall one attempt at intimidation about five or six years ago. He says Philip Morris wrote a letter complaining of alleged inaccuracies in one of his stories and then sent a copy of the letter to every newspaper that used the story. "Because we don't keep track of the papers that use our stories, we were unable to respond," Raeburn says.

"The strategy to fight back can probably best be described as anywhere, everywhere, and as well as you can. "Brennan Dawson, described as a tobacco industry lobbyist, on CBS "Sunday Morning," July 10, 1994.

But lately, the industry seems increasingly ready to use more brutal tactics. RJ Reynolds Tobacco Co., the manufacturer of Camels and other cigarettes, slapped the authors of the two articles published in the Journal of the American Medical Association with subpoenas seeking all records concerning their research including the names of children who had taken part in the JAMA studies. The articles, which were published in the December 11, 1991 issue of the journal, concerned the effect of Reynold's "Joe Camel" cartoon advertising campaign on the behavior of children. To the dismay of many in the research community, a Massachusetts court ruled in the tobacco company's favor. Many researchers fear the ruling may set a precedent that would severely limit their ability to guarantee the confidentiality of information gathered from subjects (See Science, June 19, 1992, p. 1620- 1621).

Joseph DiFranza, M.D., an associate professor of family and community medicine at the University of Massachusetts at Fitchburg, was forced to turn over his records to the cigarette company, ostensibly to allow them to check the validity of his research. The company did more than that. It launched a public- relations attack on DiFranza's credibility using information from the material, which the researcher says was taken out of context and misconstrued. Reynolds, however, argues that the documents show DiFranza deliberately manipulated data to support his bias. Tobacco industry allies in the media blasted DiFranza and JAMA. Someone also filed a formal complaint of scientific fraud against the researcher. A panel appointed by his university to investigate the charges did not find them valid.

"The plan," says DiFranza, "was to create enough doubt about our studies so that the Federal Trade Commission could justify a decision not to ban the Joe Camel ads. And that plan worked."

The author of the other JAMA study, Paul Fischer, M.D., editor of the Journal of Family Practice, has fared even worse. He had to resign his academic post and is no longer conducting research. After he won two court decisions in Georgia to protect the confidentiality of his records, the tobacco company tried a different approach. It asked the Medical College of Georgia, where Fischer was professor of family medicine, to turn over his records claiming that they were public documents. The medical school took the tobacco company's side even though the research was not funded by any school or public funds. In response to what he says is an unacceptable assault on academic freedom, Fischer resigned from the school and is now fighting the school and the tobacco company in court.

Although they may prefer gentler means, tobacco companies have not hesitated to unloose their attorneys whenever they perceived a significant enough threat to their public image. In The Smoke Ring: Tobacco, Money, and Multinational Politics (Pantheon Books, NY, 1984), author Peter Taylor explains how Philip Morris used the courts to suppress the distribution of a television program he and Martin Smith made for Thames Television in 1976. The program, called "Death in the West -- the Marlboro Story," tells the stories of six American cowboys who were dying of smoking-related diseases. It contrasted the misery of the former smokers with the company's famous TV commercials that featured rugged, virile cowboys riding off into the sunset as viewers are beckoned to "Come to Marlboro Country." Philip Morris sought to discredit the film as a hoax by claiming the dying men were not really cowboys. The company also claimed that it was duped into permitting its commercials to be used in a film it thought would depict cigarette smoking more favorably.

Although Philip Morris obtained a settlement that barred distribution of the film, a copy eventually turned up in Stanton Glantz' mailbox in December 1981. Glantz, who is professor of medicine at UCSF and a leading expert on passive smoking and tobacco-control policy, provided copies to the news media when they heard he had a copy of the suppressed film. Death in the West was first aired in the U.S. by Alex Chadwick (now at NPR) over NBC affiliate KRON-TV in San Francisco. Glantz later turned the film over to the Americans for Nonsmokers' Rights, which distributed copies to the news media and to schools around the world. The film has since become a classic documentary among public health groups.

In addition to the recent law suits and subpoenas, the tobacco industry has launched an advertising blitzkrieg to defend itself and -- in the opinion of at least some of the journalists involved -- to intimidate the press. Philip Morris bought a series of full-page ads over a five-day period, from June 27 to July 1, in the New York Times, the Wall Street Journal, and other papers to attack the credibility of the Environmental Protection Agency, which last year issued a report classifying environmental tobacco smoke (ETS) a human carcinogen. The ads also criticize Hilts and Lawrence Altman of the New York Times and other journalists who reported major stories on the health effects of ETS (also called passive or second-hand smoke). The ads reprinted an article from Forbes MediaCritic, written by Jacob Sullum, at the time managing editor of Reason magazine.

Sullum's article accuses Altman and others of serious errors, exaggerations, and a bias against the tobacco industry. It also accuses the EPA of corrupting science and cites many of the tobacco industry's arguments that so far have persuaded virtually no one in medicine and public health who are not recipients of tobacco industry money. He attacks the EPA for "abandoning the usual definition of statistical significance" by using a 0.1 p value instead of 0.05. However, because it could hardly be argued that passive smoking reduces the risk of cancer, the EPA justifiably used what's called a "one-tailed test." Any statistical textbook would have told Sullum that 0.1 in a one- tailed test is equal to 0.05 in a two-tailed test.

Even more important was the very high statistical significance of the association found in many of the studies between heavy ETS exposure and lung cancer. Epidemiologists are always reassured when they find a dose-response relationship in their data, and they certainly have one here.

Philip Morris is not the only tobacco company carrying on an advertising campaign against what it claims to be unfair treatment by the news media. Late in May, Brown & Williamson bought full-page ads in major newspapers across the country to draw attention to an error in a New York Times story. In an article that ran May 7, Hilts mistakenly attributed a conclusion about the hazards of tobacco to a cigarette company representative when the representative may only have been referring to the views of the Surgeon General. Two weeks later the Times printed a correction, according to its custom, as a Page 2 editor's note, an unusually serious acknowledgment of error. Whereupon Brown & Williamson then took out full-page ads in the Times, the Wall Street Journal, USA Today and other papers accusing the Times editors of burying the correction among its display ads. According to the June 18 issue of Editor & Publisher, the Wall Street Journal angered the cigarette company because it would not publish the ad unless "buried editor's note" was changed in the ad copy to "minor editor's note."

According to some newspaper accounts of the Philip Morris/Sullum ad campaign, Sullum has no ties to the tobacco industry. However, the cigarette company has been a contributor to the Reason Foundation, the Libertarian organization that publishes Reason magazine. According to the editor, Virginia Postrel, Philip Morris gave the foundation $10,000 last year. However, she says there was absolutely no relationship between the grant and Sullum's article in Forbes MediaCritic. But according to a June 30th article by Chip Jones, business reporter for the Richmond (Va) Times-Dispatch, Sullum "received $5,000 from RJ Reynolds for the publication rights to another piece which was reprinted recently in a national advertising campaign by the tobacco company."

The June issue of Reason features a cover story that attacks the "HIV establishment and its journalist allies" for perpetuating the myth that AIDS is caused by the human immunodeficiency virus.]

Studies suggest that there is a link between tobacco advertising and a self-imposed censorship on tobacco health stories. In the New England Journal of Medicine, Jan. 30, 1992, Kenneth E. Warner, PhD, and colleagues report finding a strong correlation between the proportion of a magazine's revenues derived from tobacco ads and the likelihood that it would not publish articles on smoking and health.

Many journalists have long complained about editors or publishers who spike health stories because they addressed tobacco-related diseases. Too often media management has been afraid such stories would lose them a lot of advertising -- not just tobacco ads but ads for seemingly everything from Fig Newtons to Oscar Mayer hotdogs to Miller beer to Bulova watches to Loew's Movie Theatres to Saks Fifth Avenue stores. The tobacco industry seems to have bought up everything that the Japanese don't own.

In its attempt to discredit research linking passive smoking to cancer, heart disease, and other illnesses, the tobacco industry appears to have launched an unprecedented campaign to intimidate and discredit journalists who cover this beat. If tobacco companies now seem more willing to openly rough up members of the news media, we should view this as a healthy sign that our own industry is finally kicking the tobacco- advertising habit.

LETTERS

Many thanks to Andy Skolnick for his fine analysis of the tobacco industry's tactics that appears in the Summer 1994 issue of ScienceWriters. There is, however, one little statistical mistake in the article. On page 4, the last full graft, the copy says "Any statistical textbook would have told Sullman that 0.1 in a one-tailed test is equal to 0.05 in a two-tailed test." Actually, the exact opposite is true: 0.05 in a one-tailed test is equal to 0.1 in a two tailed test, because the probabilities of landing out in either tail (0.05 in this example) are added together to determine the total probability that random error explains the observed results.

Now, there is nothing sacrosanct about choosing an alpha of 0.05. As you know, that simply means that the probability of getting these results because of random variation alone is 5%. By convention, most of us have decided that this is an acceptable chance of being misled by random error. An alpha of 0.1 means that the chance of drawing the wrong conclusion is 10%, and apparently this is the alpha the EPA choose to use, for whatever reason. Ideally these alpha levels should be decided upon prior to the acquisition of data; It's not especially credible to look at the p value you get form the data and then decide what alpha you'd select to declare something "statistically significant."

But none of this takes away from a sobering message well- delivered