Ashes to Ashes (94 page)

The second key addition to the Prop Five advocates was Dr. Raymond Weisberg, a San Francisco internist and chairman of the public-affairs committee of the American Cancer Society’s California branch. Weisberg was able to attract help from members of the California Medical Association, the American Lung Association, and other pillars of the medical establishment, thus overcoming the “kook” factor that Prop Five foes attributed to the effort. Weisberg also prevailed upon state ACS leaders to funnel some backdoor funding to the clean-air coalition—the only way the national organization, perennially fearful of political entanglements lest they offend contributors on the other side of the antismoking cause, would countenance the step. Even limited ACS backing of Prop Five made it easier to attract prominent figures in
science, like former Atomic Energy Commission chairman Glenn Seaborg, and in Hollywood, like actor Gregory Peck, to the antismoking cause. Early polls showed voters favoring Prop Five by a surprising three-to-one ratio. But it was not a gut issue in that gubernatorial election year, and clean-air money was hard to come by; Loveday and Hanauer contributed several thousand dollars of their own to keep their statewide drive going.

The contest soon changed as the tobacco industry calculated that it stood to lose no less than $250 million of its California revenues if Prop Five passed. Five of the six companies assembled a war chest, with each one’s contributions in keeping with its market share; only American Tobacco, self-styled industry militant, held aloof and got a free ride. With the aid of top lawyers, publicists, and political consultants, the industry soon realized that it could not prevail on the health issue, even though the scientific evidence on the nature of the ETS peril was hazy at best. Instead, the cigarette makers ridiculed the clean-air advocates as latter-day Carry Nations, strident busybodies intruding on the personal freedoms of the public. At the same time, they reached out to labor, racial minorities, and feminists by characterizing the antismoking restrictions as elitist, since smoking would be allowed in private offices but not in open areas at work sites, where secretaries, clerks, and other lower-level personnel were stationed. “Show me a worker who doesn’t smoke,” remarked the California head of the Oil, Chemical and Atomic Workers Union, “and I’ll show you a worker who beats his wife.” This allusion to the tobacco-allayed frustrations of blue-collar life was cited as well by the big teamsters, auto-workers, and longshoremen’s unions in opposing Prop Five. The tobacco interests also appealed to Republican and antigovernment sentiments by claiming that the clean-air law would cost a great deal to implement and administer and confected a price tag to suit their needs: $250 million for the first year, when private businesses would be required to put up walls and partitions to establish nonsmoking sections, plus $43 million in government outlays, more than half for law enforcement. The industry won the support of San Diego’s police chief, who said the new law would siphon off a portion of his manpower needed for combating serious safety hazards. Others argued that the proposed statute was somewhat arbitrary and capricious in that it barred smoking at rock but not jazz concerts, at amateur but not at professional sports events, and in taxis even if both driver and passenger did not object.

The clean-air coalition fought back, claiming that the restrictive measures would save the public a billion dollars in health-care costs and lost wages due to smoking-related illnesses. And the nimble-minded Stan Glantz uncovered an error in the tobacco industry’s computations which he said inflated the claimed cost of “No Smoking” signage a thousandfold. But the correction was too complex for the public to grasp, no matter how lucidly Glantz tried to explain it, meanwhile allowing the debate to dwell on an issue damaging to the
passage of Prop Five: the price the public would have to pay for its implementation. As the campaign ended, the tobacco ad dollars poured in; the industry spent $6 million to defeat Prop Five, more than twenty times the GASP-led coalition’s outlay and more than the two gubernatorial candidates spent between them. The antismoking proposal lost by 54 percent to 46.

Viewing the outcome as a vigorous exercise in consciousness-raising, the clean-air coalition tried again two years later, but toned down the proposed restrictions a bit. Known as the Smoking and Nonsmoking Sections Initiative, Proposition 10 on the 1980 California ballot provided for separate areas in enclosed public places and indoor work sites, barred smoking in stores, permitted it anywhere outdoors, said the smoking and nonsmoking sections in offices did not have to be separated by walls or partitions, and made violations a civil, not a criminal, offense, to be enforced by health officers instead of the police. The antismoking camp slammed the tobacco industry with charges of having purchased victory in Prop Five and hiding now behind a paper organization called Californians Against Regulatory Excess (CARE); polls showed Prop Ten ahead by two to one just six weeks before the election. But with another advertising blitz by the companies in the homestretch, the separate smoking accommodations proposal went down again, 53 percent to 47.

The antismoking crusaders exacted retribution the following year against Philip Morris, which had spearheaded the industry’s defense in the two California propositions. The clean-air coalition would soon reorganize as Californians for Nonsmokers’ Rights, with Glantz as president. A celebrity of sorts by now, Glantz received by mail a pirated tape of Peter Taylor’s
Death in the West
, suppressed under the court-approved settlement in Britain between Philip Morris and Thames Television. Convinced that the film should be shown in the U.S., Glantz went to a San Francisco law firm that agreed to handle the matter as a public service. On investigation, the tape was found to be in proprietary limbo: Thames had not copyrighted the original film in America, and Philip Morris had not obtained the copyright under its settlement agreement, probably believing it better public relations to have the British firm police any purloined copies and move against any attempted illicit showings. But Thames had no financial incentive for bringing an action against any U.S. exhibitor, and the First Amendment protection against prior restraint of speech or expression would shield at least an initial showing. Glantz further hedged the calculated risk he was about to take by explaining the entire matter to the general counsel of the University of California, his employer, which decided, according to Glantz, that he was performing a valuable community service and agreed to support him in the event that the filmmaker or the tobacco giant took him to court.

Glantz brought the tape to the three big health voluntaries, which all declined to sponsor a public showing, and to CBS, which again elected not to put
it on “60 Minutes.” Frustrated, Glantz took his problem to Michael Pertschuk at the FTC, who tried to have the antismoking film shown within the lawsuit-proof confines of the Senate Commerce Committee, where he had long wielded influence as a senior staffer, but those days were gone. He then fed the story of the suppressed tape to muckraking syndicated columnist Jack Anderson, who published it. The account persuaded San Francisco’s NBC affiliate KRON-TV to view the tape and risk airing it. The ratings were good, and Philip Morris chose not to chance a public-relations black eye by taking the station, Glantz, or anyone involved to court. Subsequently, Boston’s public TV outlet, WGBH, showed
Death in the West
, and soon the tape was made readily available through a private distributor to anyone who wanted to buy it, with royalties payable to the California Board of Regents and the nonsmokers’ coalition. A special introduction explained how the American public was intended never to see the film.

VIII

PERHAPS
the most contemptuous of the tobacco industry’s chief executives toward its detractors in this period was Robert Heimann, who headed American Brands, as American Tobacco’s parent was now known. During several depositions taken for liability suits in the mid-1980s, not long after he had retired from the company, Heimann disclosed what his thinking had been on the charges against smoking. American Tobacco had never bothered to assemble a panel of doctors or scientists to find out their opinion on the health hazards its product might present, Heimann said. Asked if he thought unlimited smoking might prove hazardous, Heimann replied that his company “never got into that subject of how much anybody should smoke. … What people want to do is their own decision, not our decision. We try to keep our product … in the best possible condition to produce pleasure on the part of our customers.”

Lest the American Brands boss be supposed to have been utterly callous and indifferent to communal health concerns, it must be noted that Heimann told the trade magazine
Tobacco Journal
late in 1977 how his company tried to be “a good citizen”. It did this not by worrying over any damage its product might do to consumers but by taking pains so that the water discharged into the James River from its plant at Bermuda Hundred, Virginia, was “a good deal purer than the same water when we drew it out.” He was proud as well of the program run by the Council for Tobacco Research—which was as close as Heimann came to conceding that there was any problem that required research. “The beauty of this concept,” Heimann told his interviewer, “[is] that the people who support it have nothing to say about the granting of the money. …
[I]t’s not a public relations ploy. It doesn’t amount to institutional advertising. It’s not blowing your own horn. It’s not attacking anybody. It’s trying to be constructive.”

But a likely more candid expression of American Tobacco’s estimate of the CTR program was offered, not long after the published interview with Heimann, at a closed-door meeting in Lexington, Kentucky, on October 26, 1978, of the tobacco industry’s research committee of lawyers and scientists. According to subpoenaed notes of that meeting, two American Brands attorneys, Arnold Henson and Janet Brown from the New York firm of Chaddbourne, Parke, stated that “CTR must be maintained but need[s] new people. It must be more politically oriented. … The approach must be steady, slow and conservative. They must find skeptical scientists. … The staff at CTR also need[s] to be more tobacco oriented with a skeptical view … .”

The alleged purity of the CTR’s investigations into the links between smoking and disease had been a central tenet of the industry’s publicly expressed code of conduct since 1954, when its joint research program was created. As a 1970 ad placed by the Tobacco Institute put it, “Completely autonomous, CTR’s research is directed by a board of ten scientists and physicians “ But a perhaps more revealing glimpse into how autonomous the CTR was, who ran it, and for what purpose was offered just a month after the Lexington meeting at another session of industry lawyers and scientists, this one in New York, according to a November 17, 1978, memo summarizing it by Robert Seligman, who had succeeded Helmut Wakeham as head of the Philip Morris research and development program. Seligman paraphrased the remarks at the meeting by veteran tobacco lawyer William Shinn of Shook, Hardy & Bacon describing the history of the tobacco companies’ joint research council: “It was set up as an industry ‘shield’ in 1954 CTR has helped our legal counsel by giving advice and technical information, which was needed at court trials. CTR has provided spokesmen for the industry at Congressional hearings. The monies spent on CTR provides
[sic]
a base for introduction of witnesses … .”

The Seligman memo for the PM files went on to note that the best way CTR spent its funds was on the “special projects” program run by the lawyers. “On these projects, CTR has acted as a ‘front’; however, there have been times when CTR was reluctant to serve in that capacity.” Most of all, Shinn felt, in remarks that Seligman’s memo seems to imply were representative of the consensus, “It is extremely important that the industry continue to spend their dollars in research to show that we don’t agree that the case against smoking is closed. … There is a ‘CTR basket’ which must be maintained for ‘PR’ purposes … .” Remarks seemingly corroborative of this assessment were offered three years later by CTFt’s veteran counsel, Edwin Jacob, who at a September 10, 1981, meeting of the industry’s committee of general counsel said, according to notes made of the session, “When we started the CTR Special Projects,
the idea was that the scientific director of CTR would review the project. If he liked it, it was a CTR special project. If he did not like it, then it became a lawyers’ special project,” which could be shielded from outside scrutiny under the privileged lawyer-client relationship. As Jacob added, noting several grantees by name, “With Speilberger, we were afraid of discovery for FTC and [in the case of] Aviado, we wanted to protect it under the lawyers. We did not want it out in the open.”

The industry’s direct involvement in these “special projects”—despite its repeated claims in public of a hands-off policy regarding the research it funded on smoking and health—was confirmed by one high-ranking Philip Morris scientist who sat on the manufacturers’ “Technical Subcommittee,” serving among other functions as liaison with and in oversight of CTR. The “special projects” were undertaken with and for the lawyers, according to the Philip Morris official, “to help them in their efforts to defend the industry. I see nothing sinister in all that—just a bunch of inept guys trying to play scientist.” The CTR, he added, “had no program, just divisions of investigation” such as smoke chemistry, genetic studies, and carcinogenesis. Examples of CTR “special projects” for the 1979–81 period were found in industry documents marked “Personal and Confidential—For Counsel Only” and were produced in the course of litigation several years later. Among these were a grant of $30,000 to British psychologist Hans Eysenck for maintenance of a registry of twins to gather data in support of the “constitutional theory” that smokers were in effect born that way; $69,161 to Richard Hickey for studies on the relationship of air pollution “and other environmental variables” to chronic diseases; $61,500 to Arthur Furst to “study the effects of combined asbestos and ben-zopyrene on lungs of mice;” and $127,932 to Theodor Sterling for a “Retrospective Analysis of Environmental Contacts of Patients with Respiratory Cancer, Other Cancers, and Other Diseases.” The projects had at least two important elements in common: all were aimed at blaming something besides tobacco smoke as a prime instigator in human pathogenesis, and each of the investigators wrote publicly or testified in court or before Congess (or both) in behalf of the cigarette industry’s position on smoking and health.