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Former FDA Chief Says Industry Controlled Nicotine Levels in Cigarettes

*By Nancy Zuckerbrod* Associated Press Writer
Published: Sep 23, 2004

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WASHINGTON (AP) - A key witness in the Justice Department's racketeering 
case against the tobacco industry backs up the government's assertion 
that cigarette makers manipulated nicotine to keep smokers hooked.

The government alleges in the $280 billion civil suit that cigarette 
makers conspired for decades to deceive the public about the dangers of 
smoking and addictive nature of nicotine. Justice lawyers also say the 
industry targeted teens and lied about that too.

Former Food and Drug Commissioner David Kessler stated in written 
testimony filed with the court that tobacco companies controlled 
nicotine levels by blending different kinds of tobacco leaves to get the 
nicotine needed to satisfy a smoker's addiction.

Kessler, scheduled to appear in court on Thursday, also stated companies 
add ammonia to cigarettes to boost the effects of nicotine.

That's an allegation the tobacco industry denied in opening arguments 
Wednesday.

Lawyer William Newbold, representing the Lorillard Tobacco Co., said 
some companies add ammonia, but only "to improve the quality and the 
taste" of cigarettes.

Kessler investigated the tobacco industry in the 1990s and asserted 
jurisdiction over it after concluding nicotine in cigarettes is a drug. 
The Supreme Court later ruled Kessler overstepped his authority and 
needed permission from Congress before seeking to regulate the cigarette 
industry.

Kessler said the industry was not "forthcoming" during his 
investigation. "Parts of the industry waged, I think it is fair to say, 
a significant attack on the agency," he said.

At issue is whether the companies committed fraud by denying publicly 
that nicotine was addictive while acknowledging it was addictive in 
internal industry documents.

Tobacco lawyers deny they committed fraud. They also say the government 
is going to have trouble proving future fraud is likely - something the 
racketeering law requires the government to show.

Philip Morris lawyer Ted Wells told U.S. District Judge Gladys Kessler 
Wednesday it will be impossible to demonstrate the likelihood of future 
fraud because the industry now runs ads and makes information available 
on Web sites detailing the hazards of smoking and 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 market to teenagers, 
while denying doing so, and of denying secondhand smoke is hazardous to 
nonsmokers despite scientific evidence showing the opposite. The 
government also says 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 
publicly 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 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.

---

On the Net:

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

AP-ES-09-23-04 0802EDT