NEW
STRATEGY ON SMOKING & HEALTH
This memorandum deals with a confidential
position paper originating with BAT in London, proposing a
"new strategy" on smoking and health. The paper actually
makes a number of discrete proposals for changing the
merchandising and advertising techniques of affiliated
companies around the world.
The "Causation" Concession
The most significant recommendation from a legal
standpoint is, predictably, the author's proposal that BAT
"move our position on causation to one which
acknowledges the probability that smoking is harmful to a
small percentage of heavy smokers."
The author amplifies this by observing that in
our advertising in the United States
"there seems to be no particular reason why the
industry should not indicate its apprehension about people
who smoke more than say 20 cigarettes a day and its
confidence about those who wish to smoke less than this
amount."
The legal disadvantages to this position could
possibly be so great as to effectively counter the author's
objective which is "to become strong in tobacco." The grave
legal disadvantages are set out below:
To admit that smoking causes death and disease
will most certainly enlarge B&W's liability to
consumers. The admission goes beyond even the imposition of
a "strict liability" standard.
The "new strategy" proposal would go a long way
toward conceding causation, which is the only remaining
defense where strict liability applies (the doctrine of
strict liability is used in cases involving inherently
dangerous products and requires the plaintiff to prove only
causation; the manufacturer's due care, or lack of
negligence, is irrelevant.)
The proposal creates an indirect assurance to
"light" smokers that they can enjoy their custom without
apprehension. B&W would be warranting that use of less
than 20 cigarettes a day is not dangerous. That warranty
would likely provoke further government regulation and, more
seriously, create a whole new basis for liability to
customers.
Does anyone have hard evidence that 20 cigarettes
is a boundary that can be relied on? Will not the
proper location of that dividing line become a question
subject to argument and ultimately to decision by a
jury? I do not see how anyone can comfortably predict
a given jury will not conclude that, for a given smoker, 14
cigarettes a day, for 365 days a year, for 20 years, is not
"heavy" smoking. And what plaintiff will testify that
the consumer in question smoked 14 cigarettes per day if
liability depends on his having smoked only 6 more, or 20 in
all? If we admit that smoking is harmful to "heavy" smokers,
do we not admit that BAT has killed a lot of people each
year for a very long time? Moreover, if the evidence
we have today is not significantly different from the
evidence we had five years ago, might it not be argued that
we have been "willfully" killing our customers for this long
period? Aside from the catastrophic civil damage and
governmental regulation which would flow from such an
admission, I foresee serious criminal liability
problems. You are, of course, aware of the recent
effort by a local prosecutor to convict the Ford Motor
Company of a crime arising out of the defendant's alleged
"willfull" misdesign of the gas tank on the Pinto car.
I fear the adoption of the "new strategy" would give a
prosecutor a much stronger case against Brown &
Williamson. And because virtually all U.S. prosecutors
are elected officials, it is rumored that some have been
known to consider the effect upon the electorate of specific
exercises of prosecutorial discretion (they like to go after
fat cats).
The admission of liability inherent in the "new
strategy" would likely encourage new and more onerous
legislation and regulation, not only with respect to the
sale and advertising of cigarettes, but also as to when and
where they may be consumed.
