The Tobacco Industry's Abuse of Scientific Evidence and Activities to Recruit Scientists During Tobacco Litigation.

South Korea's state health insurer, the National Health Insurance Service (NHIS), is in the process of a compensation suit against tobacco industry. The tobacco companies have habitually endeavored to ensure favorable outcomes in litigation by misusing scientific evidence or recruiting scientists to support its interests. This study analyzed strategies that tobacco companies have used during the NHIS litigation, which has been receiving world-wide attention. To understand the litigation strategies of tobacco companies, the present study reviewed the existing literature and carried out content analysis of petitions, preparatory documents, and supporting evidence submitted to the court by the NHIS and the tobacco companies during the suit. Tobacco companies misrepresented the World Health Organization (WHO) report's argument and misused scientific evidence, and removed the word "deadly" from the title of the citation. Tobacco companies submitted the research results of scientists who had worked as a consultant for the tobacco industry as evidence. Such litigation strategies employed by the tobacco companies internationally were applied similarly in Korean lawsuits. Results of tobacco litigation have a huge influence on tobacco control policies. For desirable outcomes of the suits, healthcare professionals need to pay a great deal of attention to the enormous volume of written opinions and supporting evidence that tobacco companies submit. They also need to face the fact that the companies engage in recruitment of scientists. Healthcare professionals should refuse to partner with tobacco industry, as recommended by Article 5.3 of the WHO Framework Convention on Tobacco Control.

INTRODUCTION

Litigation against tobacco companies plays an important role in reinforcing and advancing tobacco control policies. Through lawsuits, as hidden strategies of tobacco companies were revealed to the public, the truth about tobacco products, smoking behavior, and the industry was also exposed. In short, through this revelation, everyone can reach a consensus on the need to reinforce tobacco control policies. The history of US tobacco litigation shows that such lawsuits have been “public teaching programs." Throughout the process, classified documents of tobacco companies have been disclosed to the public, and the immoral and unethical nature of the industry has become known to the world. This led the public to lose trust in the industry [1].

The importance of tobacco litigation has been emphasized in the World Health Organization (WHO) Framework Convention on Tobacco Control (FCTC) as well. Article 19 of the FCTC recommends that all parties need to strengthen municipal law and build litigation support systems for facilitating tobacco lawsuits [2]. For example, establishing municipal law, which enables seeking compensation against tobacco industry for financial losses due to smoking through litigation, is recommended. Facilitating tobacco lawsuits is essential for strengthening and advancing tobacco control policies.

In Korea, several lawsuits have also been filed against the tobacco industry. In September 1999, a patient with lung cancer who had a long history of smoking and his family filed a compensation suit against the Korean government and Korea Tobacco & Ginseng Corp. (currently KT&G). In December of the same year, six lung cancer victims and their families also filed a suit against the Korean government and Korea Tobacco & Ginseng Corp. Furthermore, although different from disease-related compensation claims caused by smoking, in January 2009, Gyeonggi province sued KT&G for compensation for damages caused by a fire started from a cigarette butt [3].

Against this backdrop, the Korea National Health Insurance Service (NHIS), a state health insurer, filed 53.7 billion Korean won worth of compensation suits against three tobacco companies—KT&G, British American Tobacco Korea, and Philip Morris Korea Inc. on April 14, 2014. Unlike the previous cases where individuals sued tobacco companies, this time, the NHIS, a government organization, did, which is noteworthy and raises hopes for successful results. However, if the NHIS were to lose, the ramifications would include serious obstruction to the advancement of national tobacco control policies as well as fatal adverse effects to public health.

That is why careful attention by the government, academia, and the public is much needed in the current suit brought by the NHIS. It is worth asking what kind of attention should be paid. According to the cases of other countries, tobacco companies steer litigation toward outcomes favorable to themselves by adopting various strategies during suits. A case in point is misuse of scientific evidence submitted as supporting evidence on the issues of the lawsuit. The companies also win over scientists who can provide evidence or testimonies favorable to them, so as to secure an advantage in the suits.

In this present study, we aim to analyze strategies employed by tobacco companies during the NHIS’s ongoing litigation and to identify what activities the companies are carrying out in implementing the key strategies—misuse of scientific evidence and recruitment of scientists.

METHODS

In order to identify and analyze tobacco companies’ strategies in the litigation between the NHIS and three tobacco companies (2014 Gahap 525 054 Compensation claim), content analysis was performed on the petition submitted by the NHIS to the Seoul Central District Court and preparatory documents submitted by the three companies to the court against the petition. Documents submitted as supporting evidence by the Korea Tobacco & Ginseng Corp. to the court in the compensation claim lawsuit (99 Gahap 104 973 Compensation claim [miscellaneous]) brought by six lung cancer patients and their families against Korea Tobacco & Ginseng Corp. were also analyzed.

Content analysis is a quantitative method of information communicated mainly via documents, TV, or radio [4]. In content analysis, words, topics, or sentences can be a unit of analysis, and the subjects of the analysis are classified by frequency or category. In this present study, content analysis was performed in an attempt to identify the claims and intentions of the tobacco companies of the case, focusing on the words and topics of the petition and preparatory documents. The petition and preparatory documents of the NHIS litigation were obtained by the author in the process of consulting for the current litigation as a member of the NHIS Normalization Promotion Committee.

In addition, the list of the supporting evidence that the Korea Tobacco & Ginseng Corp. submitted to the court was obtained through the legal agent of the plaintiff of the case. Later, to access the original copies of the supporting evidence on the list, the Legacy Tobacco Documents Library (https://industrydocuments.library.ucsf.edu/tobacco/), where internal documents of multinational tobacco companies are kept, was searched. For research reports or academic papers among the supporting evidence submitted by the tobacco companies, the possibility of any conflicts of interest or connections among the authors, participating researchers, and the tobacco companies was investigated by checking “Science-for-sale” (www.sciencecorruption.com).

MISUSE OF SCIENTIFIC EVIDENCE BY TOBACCO COMPANIES

For the NHIS to win the current compensation claim suit, what is most needed is to prove that smoking causes diseases. The defendants, tobacco companies, are claiming that epidemiological approaches and results that the NHIS uses to prove the causality are far-fetched. Therefore, proving the causal link is the paramount issue in this case, as it has been in past cases.

Besides demonstrating the causal relationship between smoking and disease, another key issue in this case is product liability: Tobacco industry is responsible for their products. If they deliberately manipulate the product and harm their consumers, they, as manufacturers, become liable for the damage caused to the consumers.

With regard to product liability, the NHIS is aggressively making an issue of the tobacco companies’ use of various additives. The NHIS claims that additives included in tobacco reinforce the addictive nature of nicotine and encourage smoking behavior [5]. In other words, the NHIS points out that including additives itself generates new smokers and worsens nicotine’s addiction. About this issue, the defendants argue that the additives to tobacco are “harmless.” To back up their claim, Philip Morris Korea cited reports of the WHO and American Cancer Society (ACS) in opposition to the argument of the NHIS.

Below is how Kim & Chang, of the law firm representing Philip Morris Korea, cited the reports of the WHO and ACS (Figure 1).

Figure 1.

Philip Morris’s argument on tobacco additives. Philip Morris Korea cited the World Health Organization’s report, entitled “Tobacco: deadly in any form” and the American Cancer Society’s report (website), entitled “Are any types of cigarettes safe to smoke?” in order to argue against the National Health Insurance Service’s argument that tobacco additives are harmful to tobacco users.

For instance, the WHO stated that “…cigarettes claimed to be without additives and made of ‘organic’ tobacco have never been demonstrated to be less dangerous or addictive than conventional cigarettes” [Reference #13 of the preparatory document]. In addition, the ACS, on its website, stated that “Smoke from all cigarettes, natural or otherwise, has many chemicals that can cause cancer (carcinogens) and toxins that come from burning the tobacco itself, including tar and carbon monoxide.” [Reference #14 of the preparatory document]. The defendant has not used additives to increase the harmful or addictive nature of tobacco as the plaintiff argues [6].

In citing or explaining the reports of the WHO and ACS, the tobacco companies misused scientific evidence. The reason why both reports compared the danger of tobacco with and without additives was that tobacco companies such as American Spirit were being irresponsibly promoted as “additive-free tobacco” at the time (Figure 2). Therefore, the two organizations wrote and published the reports to inform the public that the tobacco products labeled as additive-free were no different from common tobacco products with additives, in terms of danger. Nonetheless, tobacco companies misinterpreted the reports to be communicating exactly the opposite idea in order to dodge the criticism by the NHIS.

Figure 2.

Image of a tobacco brand named “Natural American Spirit.” Natural American Spirit has been widely advertised as “100% additive-free natural tobacco” around the world. Source from: Clarey B. Cover story — 200,000 cigarettes; 2014 [7].

In other words, the companies interpreted the reports warning of the danger of the tobacco advertised as additive-free in a way that tobacco products with additives were just as harmless as the ones without additives; thus, adding additives to tobacco is harmless. In fact, the WHO and ACS reports explained that tobacco products labeled as “additive-free” were also found to contain additives through component analysis. Therefore, tobacco products putatively with and without additives are both dangerous.

What is more interesting in Philip Morris Korea’s citation of the reports from the WHO and ACS can be found in the reference of the preparatory documents, marked in the footnotes. While the other international references are all in English, the report from the WHO was translated into Korean, although it was originally written in English. In other words, the ACS report was presented in English in the footnote, and the WHO report was presented in Korean in the footnote. The original title of the WHO report is “Tobacco: deadly in any form or disguise.” (Figure 3). However, in order to hide the word “deadly,” which means fatal, or leading to death, they translated the title into Korean and footnoted the reference as “Tobacco, harmful in any form.”

Figure 3.

The cover page of the World Health Organization’s report, entitled “Tobacco: deadly in any form or disguise.” Philip Morris Korea had translated the title of this report into Korean and had replaced the word “deadly” with “harmful” in their citation of the report.

TOBACCO COMPANIES’ RECRUITMENT OF SCIENTISTS

The author reviewed the supporting evidence submitted by KT&G (the defendant of the current litigation and of other individual lawsuits that have been ongoing for more than ten years) to the court responsible for the individual lawsuits then, claiming that tobacco additives were harmless: Eulna Exhibit No.188, entitled “A safety assessment of ingredients added to tobacco in the manufacture of cigarettes” (March 1994), a research paper written by John Doull, John P. Frawley, William George, Ted Loomis, Robert A. Squire, and Stephen L. Taylor. The key message of the paper was that the ingredients of tobacco additives were not dangerous.

…John Doull was a long-term consultant (mainly in the dangers of flavours) to tobacco companies.

Dr. John Doull, professor at the University of Kansas Medical School, was appointed by Senate Minority Leader Robert Dole (R-Kansas). Both Dole and Doull were long-term friends of the tobacco industry [8].

To examine how those researchers conducting such studies were linked with tobacco companies, the author performed investigations by accessing the “Science-for-sale” website (www.sciencecorruption.com) and investigating John Doull, the lead author of the paper. The results revealed that he had worked as a consultant of tobacco companies for a long time. In short, a person who had long consulted for the tobacco industry published a research paper, and tobacco companies used it as evidence to support their claim that tobacco additives were safe. Science-for-sale introduces John Doull as follows:

…John Doull was a long-term consultant (mainly in the dangers of flavours) to tobacco companies.

Dr. John Doull, professor at the University of Kansas Medical School, who was appointed by Senate Minority Leader Robert Dole (R-Kansas). Both Dole and Doull were long-term friends of the tobacco industry [8].

DISCUSSION AND CONCLUSIONS

Tobacco industry has responded to the claims of plaintiffs, using various strategies during litigation. A key tactic is to provide scientific evidence to support their positions and to recruit scientists who can endorse the tobacco industry, by giving testimonies favorable to themselves in court. In addition, targeting the lack of expertise of the Department of Justice, they have sometimes submitted a vast number of expert research reports. In the process, the researchers selectively submitted the research reports that could be advantageous to tobacco companies or they sometimes misused scientific evidence.

It is likely that the tobacco companies have been using or will use these two strategies in response to the current litigation that the NHIS has filed. The misuse of scientific evidence has already been attempted as we have reviewed in this study. The recruitment of scientists—although it was revealed through the analysis of the materials used in the prior individual lawsuits—is highly likely to be done in the present case.

When it comes to tobacco litigation, tobacco companies worldwide have allied among themselves as partners, not rivals. A prior study analyzing the internal documents of tobacco companies introduced a letter that Korea Tobacco & Ginseng Corp. sent to its rival Philip Morris Korea, asking for support for litigation at the point when a tobacco lawsuit was first filed [3]. This means that it is highly possible that materials or evidence to be used in litigation are shared inside the tobacco industry. To address such an issue, thorough examination of all supporting evidence submitted by tobacco companies in the current lawsuit brought by the NHIS is imperative: Experts on tobacco control should actively participate in reviewing the supporting evidence. For research reports or academic papers, in particular, investigations need to be performed on various aspects, including their research design, analysis methods, results, conflicts of interest among the researchers, and research funding sources.

The experts also need to be well aware of the litigation strategies that the tobacco industry has adopted and is likely to adopt in the future, such as asking researchers to conduct studies to gain supporting evidence or recruiting scientists across diverse disciplines to request testimonies in the suits [9-12].

Article 5.3 of the WHO FCTC has set various recommendations to protect tobacco control policies from the vested interests of the tobacco industry [13]. Among them, the recommendation to refuse to partner with tobacco companies is particularly noteworthy for healthcare professionals, a likely target of such recruitment. Acknowledging that working with the tobacco industry undermines tobacco control polices and negatively affects public health policies, health professionals and researchers should adamantly reject offers made by tobacco companies.

The current NHIS litigation is gaining worldwide attention. As the number of cases in which tobacco companies lose increases, more tobacco lawsuits will be filed globally. Furthermore, such a spread of tobacco lawsuits may lead to reinforcement of tobacco control policies, and ultimately, even the end of the tobacco industry. The NHIS’s position and strategies for preparing for the current tobacco lawsuit will be the key to determining the outcome of the suit. The key message of the present study to the NHIS is that the organization should make every effort to thoroughly review the supporting evidence that tobacco companies submit during the case, regardless of the time and budget required.

The history of tobacco lawsuits in the US dates back nearly 60 years. Even though the plaintiff lost in the first case, the experience provided the groundwork for developing strategies for the next cases. With more litigation experience, the chances of winning later cases grew gradually [14]. Korea should benchmark the progress of litigation in the US. The plaintiffs have lost in individual lawsuits. However, the NHIS and experts in tobacco control policy should be more proactive in informing the public of the hidden truth—the misuse of scientific evidence and recruitment of scientists by the tobacco industry—which was not carefully examined in prior lawsuits and yet was identified in the present study.

If the NHIS wins the current case, it would have a positive impact on not only the tobacco control policies in Korea, but also similar tobacco litigation in other parts of the world. Considering the implications of the suit, the NHIS and related experts should prepare for the case meticulously with a great sense of responsibility. Finally, the scope of this study was limited to the analysis of only a portion of the materials from all ongoing tobacco litigation. Therefore, further analysis of the documents that remain to be submitted by tobacco companies should also be performed promptly and comprehensively.