R.J. Reynolds Memo Raises Legal Issue
An internal memo from a leading tobacco industry law firm warns that R. J. Reynolds’ new “smokeless” cigarette may undermine the industry’s defense against smoker death claims by accenting the risks of conventional cigarettes.
The new cigarette--also touted as more fire-safe than current brands--may also invite regulation and lawsuits stemming from fatal fires, says the memo by a lawyer for a firm that represents two cigarette manufacturers and the Tobacco Institute, the industry lobby group. Health officials and anti-smoking groups have attacked the Reynolds product as a gimmick intended to hook a new generation of smokers. But the memo is the first suggestion of anxiety within the industry over possible cracks in its united legal front.
Making Admissions?
According to the memo, much of what Reynolds said in announcing the development “approaches admissions” that smoking is dangerous. Although the surgeon general contends that smoking causes about 350,000 premature deaths in the United States each year, the industry has consistently argued in court and public statements that the risks of smoking aren’t proven.
Tobacco firms--which have never lost a liability suit--also contend that the risks, if any, are covered by prominent warnings and are inherent in their products.
“The industry position has been that there is no alternative design for a cigarette as we know them and therefore a cigarette was not, and is not, defectively designed,” the memo says. “Unfortunately, the Reynolds announcement . . . seriously undercuts this component of industry’s defense.”
“Questions that immediately come to mind . . . are why the technology which has facilitated this ‘product breakthrough’ was not developed sooner” and “why only R. J. Reynolds has developed it.”
The 12-page memo--mailed anonymously to a Boston anti-smoking group and then provided to The Times--was written by one lawyer to another at Shook, Hardy & Bacon in Kansas City, which has represented cigarette companies since the 1950s. The firm is defending industry leader Philip Morris and Lorillard, Inc., in a smoker death trial in New Jersey.
Gary R. Long, a partner with the firm, said the memo was a draft of “a think piece by one of our associates and was always intended to be a brainstorm memo.” He said the memo is not a statement of the views of Philip Morris or Lorillard, was not intended for release, and may have been stolen. A Philip Morris spokesman had no comment, and Lorillard officials could not be reached.
The memo was written last September after Reynolds, the No. 2 cigarette maker, announced the new cigarette, which may soothe the fears of smokers and counter the growing militancy of nonsmokers. Scheduled for test marketing later this year, the new product will use, but not burn, tobacco. When lighted, the carbon tip passes warm air through tobacco and a flavor capsule, producing smoke for the smoker but virtually no side-stream smoke after the first couple of puffs. The smoke will contain nicotine and carbon monoxide--implicated in heart disease--but very little of the “tar” associated with lung cancer.
Not Knocking Old Brands
Reynolds officials stressed that in creating the “world’s cleanest” cigarette, they were not saying conventional brands are unsafe. The company, a subsidiary of RJR Nabisco Inc., makes Camel, Winston, Salem and other brands.
The new product is also supposed to be more fire-safe than conventional cigarettes. According to government studies, cigarette-ignited fires kill at least 1,500 Americans per year, more than any other ignition source, and bills before Congress would set a fire-resistance standard for cigarettes.
The industry’s ability to resist such regulation “will presumably be weakened” by the Reynolds development, says the Shook, Hardy memo. It says lawsuits stemming from fatal fires up to now stood little chance of success, since the smoker’s negligence could be easily demonstrated. But “the existence of a ‘goof-proof’ cigarette . . . could make this litigation significantly more attractive,” the memo says.
The issue of cigarette design has figured prominently in a New Jersey case brought by the husband of lung cancer victim Rose Cipollone. The suit seeks unspecified damages from Philip Morris, Lorillard and Liggett & Myers, makers of the brands she smoked. Evidence presented by the Cipollone lawyers purports to show that Liggett secretly developed a safer cigarette in the 1970s, but decided not to market it due to product liability fears. Defense lawyers have said they will refute the contention later in the trial.
FDA May Study Product
The Reynolds product has drawn fire from some health groups and congressmen, who have called on the Food and Drug Administration to study the ingredients before it hits the market. The FDA has no jurisdiction over cigarettes, but “our interpretation at this point (is) that it’s a drug, not a tobacco product,” said an aide to Rep. Henry Waxman (D-Los Angeles), chairman of the House health and environment subcommittee.
Reynolds officials said they expect no trouble from the FDA.
“This is a cigarette, it contains tobacco,” said Betsy Annese, director of public relations for Reynolds. It’s just that “this one heats rather than burns tobacco.” An FDA spokesman said agency officials are studying the matter.
The latest memo echoes an episode last fall involving another memo that claimed a Reynolds lawyer had acknowledged that smoking causes disease while briefing federal health officials on the new cigarette. According to the memo, written by Ronald M. Davis, director of the federal Office on Smoking and Health, the Reynolds lawyer, Peter B. Hutt, had said the new product “should provide important health benefits by reducing the risk of cancer in smokers.”
Hutt, Davis wrote, “referred to cancer, chronic lung disease, and heart disease as problems related to smoking” but “in effect asked not to be quoted as saying that smoking was hazardous.”
In a letter to Davis, Hutt denied saying smoking caused disease. He said he merely “reiterated that these were allegations by critics.”
