Stash and Destroy
News: Tobacco lawyers have schemed to hide damaging evidence from federal regulators, cancer victims, and the Congress since the 1960s, according to a confidential memo released last week.
August 12, 1997
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What would you do if your industry peddled a deadly product, denied its health risks for years, and suddenly faced a Congress eager to slap a warning label on it? If you were a tobacco lawyer in 1964, you'd hatch a plan so crazy it just might work: Take a poll to prove that people already know cigarette smoking is bad for them -- and if the plan goes haywire, destroy all the evidence.
The latest disclosures from the Tobacco Files include a memo crafted by Philip Morris' Washington law firm, Arnold & Porter, in May 1964 when Congress was mulling mandatory health warnings on cigarette packs. In it, the high-powered lawyers suggested conducting a consumer survey to prove, ironically, that the public was well aware of the health risks of smoking. It was a dangerous tactic, they admitted: If the survey backfired, it might fall into the hands of the enemy -- that is, the Federal Trade Commission, plaintiffs in cancer lawsuits, and the U.S. Congress.
The lawyers then outlined their damage control strategy: First, rig the questionnaire to produce the desired results. Then, if the results are still unfavorable, stash all the surveys in lawyers' files where they'd be difficult to subpoena -- or if necessary, destroy them all.
The Arnold & Porter memo, complete with a draft survey, is one of eight internal documents released last week when a Florida trial judge found sufficient evidence of fraud to deny the tobacco industry's claim of attorney-client privilege. Of the 40 states suing tobacco to recover the medical costs of treating smokers, Florida is the first to go to trial.
The eight documents are the first to be made public of the hundreds that the tobacco industry has fought to protect under the attorney-client privilege since the Liggett Group, in a separate settlement, turned over thousands of documents revealing communications between the big tobacco companies and their lawyers.
Those thousands are just the tip of the iceberg. In its own lawsuit, the state of Minnesota has 33 million confidential tobacco documents under seal, and Attorney General Hubert Humphrey III claims that, "Many of the things we have found aren't just smoking guns -- they are smoking howitzers." Humphrey and other critics warn that these documents are exactly the kind of evidence that could be locked away from public view by the proposed tobacco deal now working its way through the Congress.
The survey proposed by Arnold & Porter was never conducted, and in 1965 the Congress passed the Federal Cigarette Labeling and Advertising Act requiring the surgeon general's warning on cigarette packs.
And last week, the tobacco industry's cherished defense -- that the public knew all about the hazards of smoking -- bit the dust when the Florida trial judge threw it out of court. Trisha Spillan of the Florida attorney general's office said wryly of the tobacco defendants: "They didn't like that one at all."
