Wednesday, 22 October 2014

Day 245: Anodyne advertising? A failed conspiracy?

During this stage of the Montreal tobacco trials, my shortcomings have stood in the way of my fully appreciating the events that I have the pleasant task of witnessing.

Chief among those, of course, is my poor understanding of the legal principles that are so vigorously and contradictorily thrashed out before Justice Riordan. Fin de non recevoir, anyone?

Like a sophomore arts major who has stumbled into a graduate physics lecture, I often sit in blank incomprehension.

Today, however, was a return to the familiar. On his third day of presenting the final arguments of his client, JTI-Macdonald, Mr. Guy Pratte turned to the subjects of cigarette advertising and industry collusion.

Home turf at last. But what a different landscape Mr. Pratte made of it!

Harmless marketing

Over the morning, Mr. Pratte presented Justice Riordan with reasons he should not find that the advertisements placed by JTI-Macdonald offended either the community standards of their time nor Quebec law.

He focused at first on the ads produced during the first decades of the trial period, before 1980.

Until his death at the end of the 1960s, Macdonald Tobacco was a private company owned by the philanthropist-industrialist, Mr. Walter Stewart and his family. He will be remembered as the man who gave most of profits away, and who did not put much store in marketing.

(Despite this approach, the company's bread-and-butter brand, Export A, was the market leader. Shipments to soldiers during the Second World War cemented the brand's popularity, but this mixture of patriotism and marketing happened prior to the years covered by this trial).

After showing a few dull ads from this period, Mr. Pratte then showed the next phase of Export A ads, which were published in the mid 1970s to mid 1980s, after Mr. Stewart had died and the company had been acquired by RJ Reynolds. RJR-Macdonald, as it was then, was struggling to establish its marketing relevance and its ads showed it. Men with dogs. Men with trucks. Log-drivers taking a break. Rumpled, domesticated men. Canada, eh?

Anodyne ads
Mr. Pratte asked rhetorically how these ads could possibly appeal to youth, or convince a smoker to not quit. "How more anodyne can you be?"

These were a form of lifestyle advertising, he said, but no one raised concerns about lifestyle ads in this period. "There were no complaints from anybody." 

Lifestyle ads, he told Justice Riordan, were not banned until near the end of the class period -- 1997!  He warned him against ruling that such ads were inappropriate. Doing so would be to "retroactively impose a ban on advertising." 

Supporting government
policy
The "smoke smart" ads for low-tar Vantage were similarly portrayed as consistent with federal health policy. Yes, there may have been a few complaints at the time, but these had come to nothing.

"You can't ignore the fact that the ads, when you look at them, do what the government wanted to be done. You can't ignore that the complaints were dismissed," said Mr. Pratte.

No empty vessels

Moreover, the people who saw these ads were aware of what was being promoted (cigarettes) and were aware of the risks of using buying them. They were not "empty vessels". "If there is one thing we know about these people is that they have this one piece of knowledge, as of 1980." 

 Because of this, the approach taken by the Supreme Court in protecting consumers from sweep-stake ads for magazines did not apply.

In the 1980s, the management and marketing departments at RJR-Macdonald were given a shake-up, and the new teams adopted a more vibrant marketing style. 

Mr. Pratte displayed a few of these ads, and explained that the change reflected the business pressures on the company to maintain market share. He said these ads had everything to do with brand preferences and nothing to do with encouraging people to smoke. 

Intended purely to support brand share
It was at this point that Justice Riordan put the first of a series of wicked questions that would face Mr. Pratte over the day. 

"So what is the point of having rafting then?"  Justice Riordan suggested that the marketers knew what they were doing and that a connection to smoking might be inferred by their choice. "If they go to all this effort to take a wonderful picture of a kayaker ...."

He pointed out that by opining about and interpreting ads without further proof of impact, Mr. Pratte was doing exactly what he had criticized the plaintiffs' expert marketer, Richard Pollay, for doing.

Mr. Pratte insisted that the ad served "only to change the image of the brand .. it does nothing except attract attention." 

Not profiled today!
(Perhaps this criticism prompted him to stop showing ads -- certainly he did not display any from more recent years, like those for Extreme Sports! Or maybe they weren't anodyne enough.)

He turned to an explanation of the many ways in which the company had acted vigilantly to ensure it was not targeting youth in its marketing. It certainly did not, as the plaintiffs alleged, purge its records of references to young people -- it's just that there weren't very many!

He outlined other ways in which the company had acted responsibly to guard against exposing young people to inappropriate marketing.
* They had pulled ads for Tempo cigarettes very soon after there were complaints (Exhibit 670). 
* Their chosen sponsorship was the SKINS golf competition, unlikely to reach youth
* They measured the audience for down-hill skiing, and found that it was mostly adults, thus allaying concerns about reaching youth through broadcast of sponsored ski events. (Exhibit 40388).
* They gave the Minster of Health an opportunity to review an their guitar ad before launching their first legal campaign after the striking down of the federal ad ban. (Exhibit 40406). "There was no response from the minister saying 'please don't run that'."  

David Dingwall made public
his concerns about JTI's ads
By this point the gap between what I believed to have happened and what Mr. Pratte was asking Justice Riordan to believe was growing quite wide.

How could it be that Mr. Pratte, in making these claims of "no complaints" had seemingly forgotten that many ministers of health had expressed concerns or more:
* Minister Dingwall had objected to the guitar ad. (Exhibit 11541.26.138.121). 
* Minister Bégin tried to prevent the company from sponsoring Canada's national ski team. (Exhibit 20063) Even the skiiers complained. (Exhibit 40023)
* Minister Epp had objected to the Tempo ad. (Exhibit 20063)
* Minister Lalonde had asked the companies to stop lifestyle promotions (Exhibit 50001)
* Minister Munro had introduced a bill to ban all ads (including lifestyle ads) in 1971, and Parliament had passed a law banning all ads (including lifestyle ads) in 1988. The ban on lifestyle ads in 1997 was the fourth federal legislative attempt. ]

Bystanders, not conspirators.

The second half of the day was given over to Mr. Pratte's answers to the sixth question posed by Justice Riordan in his guidelines for the final arguments: Did the company conspire to maintain a common front in order to impede users of its products from learning the inherent dangers of such use?

Not possible to find conspiracy, said Mr. Pratte. Proof lay in the fact that neither the public nor government had been tricked. "Government was not deceived. They did not accept the position of industry," he said.

"It was a massive failure if it was ever a conspiracy."

Justice Riordan gave Mr. Pratte even less comfort this afternoon, forcing him to step back from a few claims he wanted to make.

The first was after Mr. Pratte suggested that that the tobacco industry had established its first political association in response to a request from the Minister of Health in 1963. (Exhibit 20326) "But wasn't there another document?" the Judge interrupted, getting confirmation that this had later been described as an "insurance policy" of the industry. (Exhibit 938). (The judged politely rebuffed two attempts to disconnect the two exhibits).

The judge also challenged Mr. Pratte's characterization of Macdonald Tobacco as "bystanders" to an earlier (1962) meeting to discuss a united position on smoking and health issues. (Exhibits 154, 154a, 154b, etc). He asked the lawyer to acknowledge that "they were a member, they never disassociated themselves" and then, most unusually, instructed him to move on to a new topic.

He solicited Mr. Pratte's views on the role of conspiracy within civil litigation in Quebec. What if the CTMC had acted improperly? Would all the member companies be implicated?  It would have to be wrongful behaviour, said Mr Pratte, before admitting that this would be the case.

The rehabilitation of Hans Selye

Part of the allegations against the companies is that they conspired to engage scientists to muddy the waters and maintain a false controversy.

"Unfair", "over-the-top" and "unwarranted" said Mr. Pratte, to suggest that prominent Canadian scientists who had been funded by the industry had done anything improper. He singled out two Canadian Medical Hall of Fame inductees -- Peter Hogg and Hans Selye -- as examples of individuals whose reputations should not have been brought into question.

Having protested against parliamentary records being admitted into evidence, Mr. Pratte surprisingly cited from one of these "privileged" documents to defend Mr. Selye's honour. It was Mr. Selye's testimony before the Isabelle Committee. (Exhibit 1480-PP)

Mr. Pratte said Mr. Selye had told the committee that he did not have a history with the industry. "I should like to start by making it clear that I have no special competence to talk about the dangers of tobacco since I have done no research with tobacco products."  

Only recently, he told them, had he been able to"convince the Tobacco Industry to provide funds for research"

"One has to be fair," said Mr. Pratte. Dr. Selye had been "open about the financial contribution and the limit of his testimony."

What an odd poster-child for academic integrity!

As detailed in an article in the American Journal of Public Health, Hans Selye's involvement with tobacco companies and their litigation efforts dated from a decade before the Isabelle Committee. In 1959 He produced two memoranda on "the alleged relationship between cigarette smoking and lung cancer" (You can find the first and second in somewhat garbled form on the Legacy site. His role was hushed up: in 1959, he advised U.S. lawyers that he did not want his name used in association with this work.

None of this interesting material is in evidence in this trial. The record does, however, include an April 30, 1955 newspaper article identifying him as a University of Montreal researcher looking into tobacco and cancer. (Exhibit 1541.08.039.012).

Procès d'intention

Mr. Pratte is a highly articulate lawyer, and my vocabulary has been enriched by the experience of listening to his presentation. This is a man who does not provide an outline, prefering instead to "adumbrate"! 

Most useful was my introduction to a French expression that does not seem to have a direct English equivalent. A "procès d'intention" is the condemnation of someone on the basis of their alleged intentions.

Guarding against such a "procès" was a recurrent theme in Mr. Pratte's comments this week. His closing remarks today were another appeal to the judge to make a distinction between the moral qualities of the defendants and their legal status.

"You may have decided that these people are bad people. But that is not enough. You have to link it to the injury. The injury could only be linked [to conspiracy] if people had actually been deceived. ... It was a massive failure if it was ever a conspiracy. My friends are inviting you to see a conspiracy that just doesn't exist."

Tomorrow Mr. Pratte will complete his presentation of JTIM's defence with a discussion of causality and punitive damages.