Tobacco lawyers deny fraud, say future wrongdoing unlikely

WASHINGTON -- Attorneys for the leading cigarette makers acknowledged Wednesday that the companies sell dangerous and addictive products, but never conspired to hide those hazards.

The government is suing the industry for $280 billion that the companies allegedly made by deceiving the public about the hazards of smoking and efforts to get children hooked.

Attorney Dan Webb, representing Philip Morris, said the company "may have made mistakes in the past" but that they did not constitute fraud. "We're not perfect," he said. "The government can probably find flaws with what we do."

Webb and others cited marketing efforts that were perceived as overly aggressive and sticking with claims that ultimately proved to be wrong.

But the attorneys said the companies did not knowingly deceive consumers or conspire to do so, as the government alleges.

A second Philip Morris lawyer, Ted Wells, reminded U.S. District Judge Gladys Kessler during opening arguments that the law requires that the government show not just that fraud had occurred but that it probably would continue.

Wells said it would be impossible to demonstrate the likelihood of future fraud because the industry now runs ads and make information available on Web sites detailing the hazards of smoking and the addictive nature of nicotine.

"It's an unambiguous and clear message," Wells said. The statements, he said, "are of a permanent, irreversible and everlasting nature."

Wells mentioned restrictions on how cigarettes are marketed and sold today. Such changes resulted from legal settlements worth $246 billion the industry reached with the states in the late 1990s.

Government lawyers say past fraud is indicative of future behavior and that the industry has not reformed itself.

They accuse tobacco companies of continuing to go after teenagers, while denying doing so, and of denying that secondhand smoke is hazardous to nonsmokers. The government also say the industry changed only under threat of litigation.

"The defendants' recent superficial changes in behavior in reaction to this and other lawsuits are too little, too late," Deputy Associate Attorney General Matt Zabel told reporters.

Tobacco lawyers tried to poke holes in the government's argument that the industry colluded to mislead consumers about the alleged health benefits of smoking "low-tar" and "light" cigarettes. Recent studies have shown no benefit to consumers who smoke such cigarettes because people tend to inhale them more deeply or take more puffs.

Industry lawyers noted that the government previously advanced the idea in ads and public statements that it was better to smoke cigarettes with lower levels of tar and nicotine than regular ones.

"The government was out there telling people, 'If you aren't going to quit, switch,"' said R.J. Reynolds lawyer Peter Biersteker.

The government's case rests on internal industry documents in which tobacco executives seem to make statements that conflict with their public remarks. Industry lawyers say the Justice Department has not put some documents in their proper context.

For example, government lawyers on Tuesday displayed a Philip Morris document from the 1970s stating that a study showed "Marlboro Light cigarettes were not smoked like regular Marlboros."

Biersteker said the study included few people and conflicted with other studies that had different results.

Lawyer William Newbold, representing the Lorillard Tobacco Co., responded to allegations that the industry manipulates nicotine levels in cigarettes to make sure smokers stay addicted.

"The evidence will be that we don't spike our cigarettes," he said.

One government theory is that companies add ammonia to boost the effects of nicotine.

Newbold said some companies add it, but only "to improve the quality and the taste" of cigarettes.

The suit, first filed by the Clinton administration, has taken five years to reach trial. The government has spent $135 million on the case thus far.

The defendants are Philip Morris USA Inc. and its parent, Altria Group Inc.; R.J. Reynolds Tobacco Co.; Brown & Williamson Tobacco Co.; British American Tobacco Ltd.; Lorillard; Liggett Group Inc.; Counsel for Tobacco Research-U.S.A.; and the Tobacco Institute.

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On the Net:

Justice Department tobacco litigation site: http://www.usdoj.gov/civil/cases/tobacco2/