Suit Accuses Tobacco Firms of Deception

In a sweeping lawsuit filed Wednesday on behalf of all California residents, anti-tobacco lawyers accused tobacco companies of engaging in illegal business practices and sought an order compelling them to fund smoking-cessation programs, pay for anti-smoking ads and disgorge profits stemming from allegedly deceptive marketing tactics.

The unusual complaint, filed in Orange County Superior Court, claims the industry has violated provisions of the state Business and Professions Code that bar unfair or deceptive practices.

The complaint is the most recent in a series of statewide claims filed against the industry since May, when a federal appeals court in New Orleans rejected a gigantic class-action suit on behalf of tens of millions of Americans who purportedly are, or once were, nicotine-dependent. The appeals court said the suit, known as the Castano case litigation, was unmanageable, in part because of conflicting liability laws from one state to the next.

The Castano lawyers, a nationwide consortium of 60 private law firms, have responded by beginning to file successor suits in individual states, with California becoming the fifth.

These lawsuits by private attorneys are separate from the claims filed against the industry by nearly a dozen state attorneys general. The latter suits seek reimbursement for Medicaid expenditures stemming from smoking-related ailments.

In 1987, California lawmakers amended the state’s product liability laws to virtually outlaw conventional injury claims against tobacco companies. But attorney Mark P. Robinson Jr., a member of the Castano group, said the state prohibition against unfair business practices is a way around that problem. The law allows individuals to seek redress through the courts on behalf of the general public. If the suit were successful, the tobacco industry would be forced to fund stop-smoking programs, but no damages would be awarded to individual smokers or their families.

Robinson said the choice of Orange County was largely a matter of convenience, as his office is in Laguna Nigel.

Industry executives generally declined to comment Wednesday, saying they had yet to read the complaint. But Michael York, a spokesman for industry leader Philip Morris Cos., called the suit “the latest in this . . . almost senseless but politically correct bandwagon of litigation,” and he predicted it will fail.

According to the suit, the cigarette makers for decades concealed the fact that nicotine is “a highly addictive drug” that sustains the smoking habit long enough for millions of tobacco users to contract disease.

The companies’ “insistent and affirmative denial that nicotine is addictive, coupled with their pervasive advertising, promotional and public relations strategy, is designed to and has effectively nullified the public’s meaningful appreciation of the nature and extent of nicotine dependence,” the complaint says.

The named plaintiff, James Ellis, 58, is an Orange County man who smoked for 35 years and lost his larynx to throat cancer. In addition to the major cigarette manufacturers, the complaint names three tobacco wholesalers and the Tobacco Institute and Council for Tobacco Research.

It quotes extensively from a dozen internal documents from three tobacco firms that purport to show they knew as long as 35 years ago that their products were addictive.

In a 1963 memo quoted in the complaint, Addison Yeaman, general counsel for Brown & Williamson Tobacco Corp., stated, “We are . . . in the business of selling nicotine, an addictive drug, effective in the release of stress mechanisms.”

Also quoted is a 1962 document in which Sir Charles Ellis, scientific advisor to the board of British-American Tobacco, B&W;’s corporate parent, described smoking as “a habit of addiction” and the companies as being in “the nicotine rather than the tobacco industry.”

The suit also cites a 1972 memo by a Philip Morris scientist who stated: “The cigarette should be conceived not as a product but as a package. The product is nicotine.”

The complaint quotes another 1972 document in which an R.J. Reynolds executive wrote: “In a sense, the tobacco industry may be thought of as being a specialized, highly ritualized, and stylized segment of the pharmaceutical industry. Tobacco products uniquely contain and deliver nicotine, a potent drug with a variety of physiological effects.”

Nonetheless, the complaint says, the companies continue to deny that nicotine is addictive, including in advertisements and testimony before Congress.

Robinson, a veteran product liability lawyer whose multimillion-dollar judgment in the Ford Pinto exploding gas tank case led to a recall of the car, claimed the documents in this case are more incriminating than any he has ever seen.

“I mean, it’s incredible,” he said. “The story’s got to be told, and it’s got to be told in court.”