USA v. PHILIP MORRIS USA, et al, No. 1:1999cv02496 - Document 5992 (D.D.C. 2012)
Court Description: MEMORANDUM AND OPINION to Order 34-Remand re Corrective Statements. Signed by Judge Gladys Kessler on 11/27/12. (Attachments: # 1 Appendix Corrective Statement Citations, # 2 Appendix Corrective Statements - Implementation Details) (CL, )
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APPENDIX A Corrective Statement Citations Corrective Statement A: Adverse Health Effects of Smoking A Federal Court has ruled that the Defendant tobacco companies deliberately deceived the American public about the health effects of smoking, 1 and has ordered those companies to make this statement. 2 Here is the truth: ¢ ¢ ¢ Smoking kills, on average, 1200 Americans. Every day. 3 More people die every year from smoking than from murder, AIDS, suicide, drugs, car crashes, and alcohol, combined. 4 Smoking causes heart disease, 5 emphysema, 6 acute myeloid leukemia, 7 and cancer of the mouth, 8 esophagus, 9 larynx, 10 lung, 11 stomach, 12 kidney, 13 bladder, 14 and pancreas. 15 1 449 F. Supp. 2d at 146 ( Cigarette smoking causes disease, suffering, and death. Despite internal recognition of this fact, Defendants have publicly denied, distorted and minimized the hazards of smoking for decades. ); id. at 208 ( From at least 1953 until at least 2000, each and every one of these Defendants repeatedly, consistently, vigorously and falsely denied the existence of any adverse health effects from smoking. ); id. at 856 ( Defendants fraudulently denied the adverse health effects of smoking for at least 40 years in order to sustain the appearance of an open controversy about the link between smoking and disease, and thereby maintain and enhance the cigarette market and their collective revenues. ). 2 Id. at 938-39 ( Each Defendant shall be required to make separate corrective statements concerning . . . (a) the adverse health effects of smoking . . . . ). 3 Id. at 146 ( Cigarette smoking and exposure to secondhand smoke (also known as environmental tobacco smoke or ETS ) kills nearly 440,000 Americans every year. ); id. at 854-55 ( Cigarette smoking and exposure to secondhand smoke kills 440,000 Americans every year, or more than 1,200 every single day.). 4 Id. at 147 ( The annual number of deaths due to cigarette smoking is substantially greater than the combined annual number of deaths due to illegal drug use, alcohol consumption, automobile accidents, fires, homicides, suicides, and AIDS. ); id. at 855 (same). 5 Id. ( Cigarette smoking, including exposure to secondhand smoke, causes cardiovascular disease, including myocardial infarction (commonly known as heart attack ), coronary heart disease ( CHD ) and atherosclerosis. ). 6 Id. ( Cigarette smoking causes chronic obstructive pulmonary disease ( COPD ). . . . COPD, previously referred to as emphysema or chronic bronchitis, was found to be causally related to smoking in 1964. ). 7 Id. at 148 ( Cigarette smoking causes acute myeloid leukemia. ). 8 Id. at 147 ( Cigarette smoking causes oral cancer. ). 9 Id. ( Cigarette smoking causes esophageal cancer. ). 10 Id. ( Cigarette smoking causes laryngeal cancer. ). 11 Id. ( Cigarette smoking causes lung cancer. ). 12 Id. at 148 ( Cigarette smoking causes stomach cancer. ). 13 Id. at 147 ( Cigarette smoking causes kidney cancer. ). 14 Id. ( Cigarette smoking causes bladder cancer. ). -1- ¢ Smoking also causes reduced fertility, 16 low birth weight in newborns, 17 and cancer of the cervix 18 and uterus. 19 15 Id. ( Cigarette smoking causes pancreatic cancer. ). Id. at 148 ( Cigarette smoking causes reduced fertility. ). 17 Id. ( Cigarette smoking causes adverse reproductive outcomes, including . . . pre-term delivery and shortened gestation, fetal growth restriction and low birth weight. ). 18 Id. ( Cigarette smoking causes . . . cervical cancer. ). 19 Id. ( Cigarette smoking causes uterine . . . cancer. ). 16 -2- Corrective Statement B: Addictiveness of Smoking and Nicotine A Federal Court has ruled that the Defendant tobacco companies deliberately deceived the American public about the 20 addictiveness of smoking and nicotine, and has ordered those companies to make this statement. 21 Here is the truth: ¢ ¢ ¢ ¢ Smoking is highly addictive. 22 Nicotine is the addictive drug in tobacco. 23 Cigarette companies intentionally designed cigarettes with enough nicotine to create and sustain addiction. 24 It s not easy to quit. 25 When you smoke, the nicotine actually changes the brain that s why quitting is so hard. 26 20 Id. at 209 ( Notwithstanding the understanding and acceptance of each Defendant that smoking and nicotine are addictive, Defendants have publicly denied and distorted the truth as to the addictive nature of their products for several decades. Defendants have publicly denied that nicotine is addictive, have suppressed research showing its addictiveness, and have repeatedly used misleading statistics as to the number of smokers who have quit voluntarily and without professional help. ); id. at 271 ( Defendants have publicly made false and misleading denials of the addictiveness of smoking, as well as nicotine s role in causing that addiction . . . . ); id. at 307 ( For approximately forty years, Defendants publicly, vehemently, and repeatedly denied the addictiveness of smoking and nicotine s central role in smoking. ); id. at 856 ( Defendants have made and continue to make false and fraudulent statements about the addictiveness of nicotine and smoking. ). 21 Id. at 938-39 ( Each Defendant shall be required to make separate corrective statements concerning . . . (b) the addictiveness of smoking and nicotine; . . . . ). 22 Id. at 208 ( Cigarette smoking is an addictive behavior, characterized by drug craving, compulsive use, tolerance, withdrawal symptoms, and relapse after withdrawal. ). 23 Id. ( Nicotine is the primary component of cigarettes that creates and sustains addiction to cigarettes. ); id. at 216 ( Published research indicates that 77% to 92% of smokers are addicted to nicotine in cigarettes. ); id. at 856 ( Defendants internal research reflects their understanding that nicotine is the most important chemical delivered by cigarettes because it is what compels smokers to smoke. ). 24 Id. at 219 ( Defendants purposefully designed and sold products that delivered a pharmacologically effective dose of nicotine in order to create and sustain nicotine addiction in smokers. ); id. at 856 ( [Defendants ] product research and development efforts had the overriding objective of harnessing and manipulating the power of nicotine and ensuring that their marketed products delivered enough nicotine to create and sustain addiction. ). 25 Id. at 216 ( Every year, an estimated seventeen million people in the United States attempt to quit smoking. Fewer than one and a half million, or 8%, succeed in quitting permanently. ); id. ( People who try to quit smoking often experience withdrawal symptoms that can be extremely disruptive. Accordingly, it is usually very difficult for the smoker to stop smoking cigarettes. ). -3- Corrective Statement C: Lack of Significant Health Benefit From Smoking Low Tar, Light, Ultra Light, Mild, and Natural, Cigarettes A Federal Court has ruled that the Defendant tobacco companies deliberately deceived the American public by falsely selling and advertising low tar and light cigarettes as less harmful than regular cigarettes, 27 and has ordered those companies to make this statement. 28 Here is the truth: ¢ ¢ Many smokers switch to low tar and light cigarettes rather than quitting because they think low tar and light cigarettes are less harmful. 29 They are not. Low tar and filtered cigarette smokers inhale essentially the same amount of tar and nicotine as they would from regular cigarettes. 30 26 Id. at 210 ( As occurs with the use of all psychoactive drugs, the brain attempts to adapt to the persistent presence of nicotine. This adaptation, or tolerance, produces actual changes in the brain's structure. Over time, the brain becomes tolerant to the effects of nicotine and needs even greater amounts of it to produce the same effects on hormones as it once did before the development of tolerance. ); id. ( [B]ecause the smoker's brain has adapted to the constant presence of nicotine, it becomes dependent on nicotine to function normally. When a smoker doesn't have nicotine, the brain functions abnormally and most people, approximately 80%, experience withdrawal symptoms. ). 27 Id. at 430 ( For several decades, Defendants have marketed and promoted their low tar brands as being less harmful than convention cigarettes. That claim is false . . . . ); id. at 507-08 ( Defendants made, and continue to make, false and misleading statements regarding low tar cigarettes in order to reassure smokers and dissuade them from quitting. ); id. at 860 ( Defendants engaged in massive, sustained, and highly sophisticated marketing and promotional campaigns to portray their light brands as less harmful than regular cigarettes, and thus an acceptable alternative to quitting, while at the same time carefully avoiding any admission that their full-flavor cigarettes were harmful to smokers health. ). 28 Id. at 938-39 ( Each Defendant shall be required to make separate corrective statements concerning . . . (c) the lack of any significant health benefit from smoking low tar, light, ultra light, mild, and natural, cigarettes; . . . . ). 29 Id. at 475 ( The evidence shows that even though low tar smokers may have a greater desire to quit, the misperception of increased safety associated with low tar cigarettes persuades them to avoid quitting. ); id. ( Many smokers who were concerned about the risks of smoking responded by switching to low tar cigarettes instead of quitting. ); id. at 860 ( Current research demonstrates that approximately 50% of all smokers of lower tar cigarettes chose them to be a healthier cigarette and a potential step toward quitting. ). 30 Id. at 438 ( Because each smoker smokes to obtain his or her own particular nicotine quota, smokers end up inhaling essentially the same amount of nicotine - and tar - from so-called low tar and nicotine cigarettes as they would inhale from regular, full flavor cigarettes. This is referred to as -4- ¢ All cigarettes cause cancer, lung disease, heart attacks, and premature death lights, low tar, ultra lights, and naturals. 31 There is no safe cigarette. 32 complete compensation. Virtually all smokers, over 95%, compensate for nicotine. ); id. ( Because compensation is essentially complete, low tar cigarette smokers inhale essentially the same amount of tar and nicotine as they would from full flavor cigarettes, thereby eliminating any purported health benefit from low tar cigarettes. ); id. at 860 ( As a result of smoker compensation . . . smokers inhale essentially the same amount of nicotine (and with it, tar) from low tar cigarettes as from regular cigarettes. ). 31 Id. at 447 ( Widespread adoption of lower yield cigarettes in the United States has not prevented the sustained increase in lung cancer among older smokers . . . there is little reason to expect that smokers of low yield cigarettes will have a lower risk of disease than those who smoked higher yield cigarettes. (citing the 2001 National Cancer Institute Monograph 13)); id. ( The 2004 Surgeon General s Report reached the definitive conclusion: [C]igarettes with lower machine-measured yields of tar and nicotine (i.e., low-tar/nicotine cigarettes) have not produced a lower risk of smokingrelated diseases. ). 32 Taken from Philip Morris Proposed Statement on Adverse Health Effects [Dkt. No. 5776]. See also id. at 446 ( Recent studies . . . have confirmed that low tar and filtered cigarettes are no less harmful than conventional delivery and unfiltered cigarettes. ); id. at 706 ( The Court . . . accepts and credits his conclusions . . . that . . . [there is an] absence of a safe level of exposure to the carcinogens and toxins found in tobacco smoke. ). -5- Corrective Statement D: Manipulation of Cigarette Composition to Ensure Optimum Nicotine Delivery Design and A Federal Court has ruled that the Defendant tobacco companies deliberately deceived the American public about designing cigarettes to enhance the delivery of nicotine, 33 and has ordered those companies to make this statement. 34 Here is the truth: ¢ ¢ Defendant tobacco companies intentionally designed cigarettes to make them more addictive. 35 Cigarette companies control the impact and delivery of nicotine in many ways, 36 including designing filters and selecting cigarette paper to maximize the ingestion of nicotine, 37 adding ammonia to make the cigarette taste less 33 Id. at 374 ( Defendants have denied, repeatedly and publicly, that they manipulate nicotine content and delivery in cigarettes in order to create and sustain addiction. ); id. at 859 ( Defendants have publicly and fraudulently denied that they manipulate nicotine delivery. The evidence establishes that Defendants statements denying manipulation of nicotine have been intentionally deceptive, misleading, or otherwise fraudulent when made. ). 34 Id. at 938-39 ( Each Defendant shall be required to make separate corrective statements concerning . . . (d) Defendants manipulation of cigarette design and composition to ensure optimum nicotine delivery; . . . . ). 35 Id. at 219 ( Defendants purposefully designed and sold products that delivered a pharmacologically effective dose of nicotine in order to create and sustain nicotine addiction in smokers. ); id. at 309 ( Defendants have designed their cigarettes to precisely control nicotine delivery levels and provide doses of nicotine sufficient to create and sustain addiction. ); id. at 383 ( [C]igarette company Defendants researched, developed, and implemented many different methods and processes to control the delivery and absorption of the optimum amount of nicotine which would create and sustain smokers' addiction. ); id. at 859 ( Defendants have designed their cigarettes with a central overriding objective - to ensure that smokers obtain enough nicotine to create and sustain addiction. ). 36 Id. at 337-38 ( Defendants have used a variety of physical and chemical design parameters to manipulate the nicotine delivery of their commercial products. For example, while Dr. Farone was at Philip Morris, researchers identified fifty-seven different parameters that influence the quality and content of smoke delivery by a burning cigarette. . . . Physical design parameters include cigarette length, circumference, and density; filter composition and design; air dilution or ventilation; and cigarette paper composition and porosity. Chemical design parameters include tobacco blend selection, the chemical composition of tobacco filler, and the choice of additives, including additives such as ammonia and ammonia compounds to influence smoke pH and the amount of free nicotine. . . . ); id. at 858-59 ( Defendants have studied extensively how every characteristic of every component of cigarettes including the tobacco blend, the paper, the filter, additives, and the manufacturing process affects nicotine delivery. They have utilized that understanding in designing their cigarettes. ). 37 Id. at 309 ( Other cigarette design features used by Defendants to control nicotine delivery include filter design, paper selection and perforation, [and] ventilation holes . . . . ) -6- harsh, 38 and controlling the physical and chemical make-up of the tobacco blend. 39 ¢ When you smoke, the nicotine actually changes the brain that s why quitting is so hard. 40 38 Id. ( Other cigarette design features used by Defendants to control nicotine delivery include . . . [the] use of additives (such as ammonia) to control the PH of cigarette smoke. ) 39 Id. at 309 ( Most cigarettes are manufactured using reconstituted tobacco material, additives, burn accelerants, ash conditioners, and buffering substances, all of which affect nicotine levels and delivery. ). 40 See supra note 26. -7- Corrective Statement E: Adverse Health Effects of Exposure to Secondhand Smoke A Federal Court has ruled that the Defendant tobacco companies deliberately deceived the American public about the health effects of secondhand smoke, 41 and has ordered those companies to make this statement. 42 Here is the truth: ¢ ¢ ¢ ¢ Secondhand smoke kills over 3,000 Americans each year. 43 Secondhand smoke causes lung cancer and coronary heart disease in adults who do not smoke. 44 Children exposed to secondhand smoke are at an increased risk for sudden infant death syndrome (SIDS), acute respiratory infections, ear problems, severe asthma, and reduced lung function. 45 There is no safe level of exposure to secondhand smoke. 46 41 Id. at 788 ( Despite the positions of the public health authorities and despite their own internal recognition of the link between [environmental tobacco smoke] and disease in nonsmokers, Defendants made numerous public statements denying the linkage. ); id. at 864 ( Despite their internal acknowledgement of the hazards of secondhand smoke, Defendants have fraudulently denied that ETS causes disease. ); id. at 866 ( Defendants fraudulently denied the adverse health effects of ETS in order to maintain the appearance [sic] an open controversy about the link between ETS and disease and thus maintain and enhance the cigarette market and their collective revenues. ). 42 Id. at 938-39 ( Each Defendant shall be required to make separate corrective statements concerning . . . (e) the adverse health effects of exposure to secondhand smoke (also known as environmental tobacco smoke, or ETS). ). 43 See id. at 701 (noting that Environmental Protection Agency concluded that secondhand smoke causes approximately 3,000 lung cancer deaths annually in U.S. nonsmokers. ); id. at 704 (citing EPA numbers and noting that it found over 3,000 deaths annually from passive exposure to secondhand smoke). 44 See id. at 705-06 ( [E]xposure to secondhand smoke causes lung cancer and coronary heart disease in adults . . . . ); id. at 706 ( [T]he health risk posed by exposure to secondhand smoke is significant. ). 45 Id. at 703 ( Passive exposure of infants and children to tobacco smoke has adverse effects on their respiratory health, including increased risk for severe lower respiratory infections, middle ear disease (otitis media), chronic respiratory symptoms, and asthma. Passive exposure also causes a reduction in the rate of lung function growth during childhood, and is linked to Sudden Infant Death Syndrome. ); id. at 704 ( Secondhand smoke is also linked to the exacerbation of asthma, reduced lung function, and respiratory symptoms in children. (citing testimony linking secondhand smoke to SIDS, acute respiratory infections, middle ear disease, chronic respiratory infections, asthma, and reduced rate of lung growth)). 46 Id. at 706 ( The Court . . . accepts and credits his conclusions . . . that . . . [there is an] absence of a safe level of exposure to the carcinogens and toxins found in tobacco smoke. ). -8-
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