Tobacco industry use of personal responsibility rhetoric in public relations and litigation: disguising freedom to blame as freedom of choice.

FRAMING HEALTH MATTERS

Tobacco Industry Use of Personal Responsibility Rhetoric in Public Relations and Litigation: Disguising Freedom to Blame as Freedom of Choice Lissy C. Friedman, JD, Andrew Cheyne, CPhil, Daniel Givelber, BA, LLB, Mark A. Gottlieb, JD, and Richard A. Daynard, JD, PhD

We examined the tobacco industry’s rhetoric to frame personal responsibility arguments. The industry rarely uses the phrase “personal responsibility” explicitly, but rather “freedom of choice.” When freedom of choice is used in the context of litigation, the industry means that those who choose to smoke are solely to blame for their injuries. When used in the industry’s public relations messages, it grounds its meaning in the concept of liberty and the right to smoke. The courtroom “blame rhetoric” has influenced the industry’s larger public relations message to shift responsibility away from the tobacco companies and onto their customers. Understanding the rhetoric and framing that the industry employs is essential to combating this tactic, and we apply this comprehension to other industries that act as disease vectors. (Am J Public Health. 2015;105:250–260. doi: 10.2105/AJPH.2014.302226)

Throughout the history of tobacco control, as concerns over health have prompted public calls for reform, the tobacco industry has attempted to combat criticism and influence public health debates through the use of rhetorical techniques that deflect attention from corporate responsibility.1,2 The tobacco industry’s use of personal responsibility frames, or arguments, to protect its business interests against litigation3(p870---873),4(p820),5---8 and regulation and tobacco control measures9,10(p197---198),11---14(p406) has been widely recognized. Although previous studies have enumerated and described many of the key frames employed by the tobacco industry and its allies, there is still important work to be done in more rigorously analyzing the relationships between the content of this rhetoric and its origin in either the legal or public relations (PR) context. Such an analysis helps illuminate the importance of subtle variations in the deployment of similar language to convey diverse meanings that can sway public opinion and regulators’ actions.15 This study also can inform efforts aimed at other industries that produce products that have a negative impact on public health, such as sugarsweetened beverages (SSBs) and junk food, all of which employ techniques the tobacco industry originated and perfected.16 Framing refers to the use of key concepts familiar to the listener that help guide the

understanding of an issue.17 In particular, frames structure for the audience the cause of social problems and prescribe which actors should and should not act to address them.18 Powerful default frames such as personal responsibility indicate that those who suffer the consequences of consuming certain risky products, such as smokers, are to blame for their injuries and that it is not the role of social institutions such as the government to intervene and protect them.19 Analyzing which frames are present—and absent—in public discourse such as the news is especially valuable as these frames influence policymakers by helping set the agenda for public debates, and signaling which issues are salient and which others are less urgent.20,21 The trajectory of the tobacco industry’s use of personal responsibility framing and argumentation began in 1954, when the major US tobacco companies reacted to the release of scientific studies linking smoking and cancer by hiring a PR firm to craft an advertisement called “A Frank Statement to Cigarette Smokers,” which claimed the industry “accept[ed] an interest in people’s health as a basic responsibility, paramount to every other consideration in our business.”9 The industry’s purposely ineffectual efforts to address the dangers of smoking amounted to little more than whitewash and PR rhetoric, with a major emphasis on obfuscation and delay in verifying whether

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its products were deadly, along with an effort to maintain this as an “open scientific controversy.” In 1964, US Surgeon General Luther Terry released a landmark report that analyzed and evaluated the existing scientific research, concluding that smoking causes disease and death.22 Closely following was the passage of the Federal Cigarette Labeling and Advertising Act (FCLAA) in 1965, which required warning labels on cigarette packages (mandatory warnings for cigarette advertising were later added in 1969) with the tepid and equivocal verbiage “Caution: Cigarette Smoking May Be Hazardous To Your Health.”2,23 At that time the emphasis by the public and regulators was largely on governmental accountability for addressing the problems cigarette smoking caused, while the tobacco industry escaped most culpability and accountability, even weathering the imposition of mandatory warning labels by turning it to its advantage as another way of assigning blame to smokers for their illnesses.24 In 1986, Congress passed the Comprehensive Smoking Education Act, which required rotating warning labels that were phrased unequivocally linking smoking with particular diseases.25 In the 1970s, after warning labels were imposed and both governmental agencies and voluntary health organizations had committed massive resources to educating the public about the dangers of smoking, responsibility for avoiding smoking-related illness was generally viewed as a matter of individual responsibility.12 Tipping the scales further in that direction was a growing sentiment in US society that escalating health care costs could only be contained if individuals changed their unhealthy behavior.26 Pushing back against these forces was the effort by public health advocates to highlight the dangers of secondhand smoke, with the result that “the hazards of smoking were relocated from the individual’s risky behavior to that of his or her smoking neighbor,

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[and] exposure was no longer a matter of choice but was involuntary victimization.”12(p339) Thus, the onus shifted once more toward government regulation to ban public smoking, with a concomitant call for businesses to ban smoking in their premises in the absence of governmental action. Up to this point, the tobacco industry had largely escaped accountability by either the public or government despite wide recognition and acceptance of cigarettes’ causal responsibility for disease and death.24 The tobacco industry’s use of explicit personal responsibility rhetoric reached its height in the 1980s, during a wave of consumer litigation in which the tobacco defendants countered injured smokers’ lawsuits with claims that ultimately the responsibility for the consequences of smoking cigarettes belonged to the smoker who voluntarily consumed them.27 As the 1990s began, particularly negative pressure was brought to bear on the industry when whistleblowers began leaking internal corporate documents that showed a clear conspiracy to produce an addictive product while ignoring the health hazards of which the tobacco companies were well aware, thus confirming corporate responsibility for the harm the industry’s products caused.9,28,29 As a result of the document leaks and in the face of increasing public demand for industry accountability, many of the industry’s usual allies in business and government began to abandon its cause. This led to a flood of litigation against the industry. Cases brought by state attorneys general seeking Medicaid reimbursement for smoking-related illnesses culminated in the 1998 Master Settlement Agreement.29,30 In the late 1990s and into the 2000s, several juries found in favor of injured smokers in private litigation, with damages being awarded in the millions and even billions of dollars.31 These types of cases continue to be litigated, primarily in Florida, where a jury in a class action found the tobacco industry liable, setting the stage for thousands of individual claims.32,33 Despite continuing to use personal responsibility arguments in smokers’ litigation,34 currently the tobacco defendants are losing about two thirds of the Florida cases, with the juries apportioning responsibility between the plaintiff and the defendant in each case.35 Adding to existing scholarship, we sought a deeper understanding of the tobacco

industry’s framing, rhetoric, and tactics, and their application, based on both content and legal analyses. Our first study examined the early debate about tobacco and the initial scientific revelations that it was harmful (from 1952 to 1965) and found an unexpected lack of personal responsibility rhetoric by any of the speakers but rather an emphasis on the government’s responsibility to address the issue, which culminated in the passage of the FCLAA.24 Our next study focused on determining when the debate shifted and the tobacco industry began explicitly referring to smokers’ individual personal responsibility, which we found began in the 1970s and gained prominence in the late 1980s, during what has been called the “second wave” of tobacco litigation.27 In our study, we examined the specific rhetoric used by the tobacco industry to frame personal responsibility arguments in both the media and the courtroom, and analyzed how the 2 influenced each other. This study’s findings have application not only for tobacco control advocates, but also for others focusing on public health issues arising from the consumption of numerous other products that cause avoidable noncommunicable disease and death, such as obesogenic food and beverages,16,36 alcohol,37 electronic gambling machines,38 and firearms,39 because those industries are now replicating and refining successful tobacco industry tactics and rhetoric. Comprehension of the evolution and cross-pollination of corporate litigation and communications strategy and a focus on corporate malfeasance and deceit will furnish public health advocates with ammunition for developing countermarketing strategies to denormalize health-compromising products and the industries that produce them.40---42

METHODS We searched the Legacy Tobacco Documents Library,43 which contains a collection of internal tobacco industry documents that were disclosed and archived online as a result of the 1998 Master Settlement Agreement.44 We also searched the Deposition and Trial Testimony Archive, a collection of trial and deposition transcripts.45 We examined tobacco documents and transcripts created between 1966 and 1991, which encompasses the period immediately following the passage of the

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FCLAA that heralded the inception of the tobacco industry’s use of personal responsibility argumentation and closes with the end of the second wave of tobacco litigation, by which time the use of personal responsibility argumentation was a standard and well-developed tool in the tobacco industry’s arsenal in combatting injured smokers’ lawsuits. Our reason for confining our analysis to this time period was that our 2 previous studies had already shown that, before 1966, such rhetoric was not generally used by any of the concerned parties, including the tobacco industry, the public, legislators, or regulators, but that it had become fully developed by the end of the second wave of litigation in 1991.24,27 We used the snowball method46 to develop searches relating to the themes of personal responsibility and freedom of choice and analyzed the resulting documents, which included litigation training manuals and memoranda, PR strategy memoranda, and marketing, media and lobbying materials. We also analyzed internal communication strategy documents that contained statements intended to be conveyed to the general public or the press. We triangulated and verified the industry’s proposed strategy and tactics by comparing those internal documents and discussions to the litigation testimony and public statements made by tobacco industry lawyers, executives, and representatives.47(p416) After eliminating duplicates, we found that 13 491 internal documents and trial transcripts were relevant and on-point for our analysis, by virtue of the fact that they discussed personal responsibility or “freedom of choice” to invoke either the liberty or blame frames. We also investigated the tobacco industry’s use of personal responsibility rhetoric in the news during this period. We used a dual track of research for this process. First, using the ProQuest Historical Newspaper database, we searched the 1966---1991 archives of the Los Angeles Times, the New York Times, the Washington Post, the Wall Street Journal, and the Chicago Tribune. (The years from 1988 to 1991 were only available for the Washington Post, Chicago Tribune, and New York Times.) We collected all of the articles that included a reference to the Tobacco Institute, the tobacco industry’s trade organization and the public face of the industry during this time, with any of the following terms: freedom,

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choice, adult, informed, choose, or responsibility. (The Tobacco Institute acted as a lobbying organization and PR mouthpiece for the tobacco industry, and was the mechanism through which the industry voiced many of its statements and positions.48[p210] Its main purpose was to influence media coverage of tobacco issues and either avert or favorably shape proposed regulation and legislation.49[p356]) For each news article, we coded which kind of responsibility argument was made (i.e., using the term “freedom of choice” to either assert liberty or apportion blame), or if none was made. We excluded articles that did not include a substantive argument. Separately, using the Legacy Library, we searched for and analyzed media clips that industry employees had retained in their files that quoted their members and asserted personal responsibility arguments. These media appearances included newspaper stories and radio and television appearances. We coded 793 from the news archives and from the Legacy Tobacco Documents Library database we coded 9 media appearances and news articles, using the same criteria for relevance as for the internal tobacco documents.

RESULTS We detected important variations in the substance of the tobacco industry’s use of personal responsibility argumentation, finding that, depending upon the context, it is used to imply 2 concepts: liberty and blame. We observed that such tobacco industry rhetoric generally uses the phrase “freedom of choice” rather than “personal responsibility” to frame its arguments. We found that when freedom of choice is used in the context of tobacco litigation, the industry means that those who choose to smoke are solely to blame for their injuries. When the same term is used in the industry’s broader PR messages to its customers, the public, and regulators, it grounds its meaning in the concept of liberty, asserting that smokers have a right to choose to smoke, free from regulation or interventions to reduce consumption. This usage ignores and obscures the role of addiction, pervasive marketing, and industry disinformation campaigns, which undercut free choice.1,50 In addition, we found that these 2 rhetorical tropes were not independent, but used in relation to one another. In seeking to analyze

the content of personal responsibility or free choice argumentation, we found evidence that the tobacco industry’s litigation strategy appears to have influenced its wider PR message. We found that, particularly at the height of the second wave of tobacco cases, the blame rhetoric that had proved so successful in the courtroom was particularly influencing the industry’s larger PR message as a way of shifting responsibility away from the tobacco companies and onto their customers.

Initial Use of Personal Responsibility Rhetoric to Emphasize Liberty and Choice According to its statement of policy and purpose, Congress had 2 goals in enacting the FCLAA in 1965. First, it aimed to ensure that the public was adequately informed of any adverse health effects of smoking. Second, it sought to ensure that commerce and the national economy were protected to the maximum extent consistent with this policy and not impeded by nonuniform, diverse, and confusing warning labels and advertising regulations.23 In the wake of congressional passage of the FCLAA, US cigarette companies staked out the position that now that consumers had notice from a warning label about the potentially dangerous effects of smoking (which the industry paradoxically relied on while simultaneously denying the warning’s veracity and calling it an open question), the real principle at stake was protecting their consumers’ freedom to pursue their pleasure and their right to choose the products they want regardless of any putative harms.26,49 This position allowed smokers to harbor doubts about causation as a rationalization to continue smoking, while enabling the tobacco companies to shift any industry responsibility for the consequences of smoking back onto its customers. Internal tobacco industry documents reveal the intent behind this rhetorical tactic. On the surface, the battle the industry was waging was designed to appear to be about liberty and choice, or as a 1977 industry long-term communications strategy memo framed it, It is a “positioning” of smoking that accurately reflects the real state of scientific knowledge— and the freedom of choice that must be allowed to every citizen in a democratic society. . . . Freedom of choice is now a powerful appeal as a countertrend to the new willingness of the public to consider measures of repression. . . . It is, moreover, a specific rebuttal to the current


campaign of the [American Cancer Society] for repressive measures.51(Bates no. 502124243)

In another document, this effort was candidly referred to as a strategy to [d]evelop counterpropaganda to more effectively neutralize and diminish the influence of the antismoking organizations, to support personal freedom of choice for smokers, and to enhance the credibility of the scientific controversy.52

In formulating its PR and lobbying messaging in the 1970s, after the passage of the FCLAA, the tobacco industry understood that its survival depended upon a lax regulatory environment. It is a typically US attitude to advocate “rugged individualism” and laissez faire or hands-off government.53---55 Having settled upon the strategy of using the term “freedom of choice” to emphasize liberty, as well as the lack of a need for government regulation, the tobacco industry disseminated this message widely through its various avenues of PR messaging. Calling freedom of choice (read: smoking) “an American birthright,” an internal 1976 communications memo by a PR consulting firm advised that, to avert stricter governmental regulations on smoking and cigarettes, tobacco executives’ PR statements should assert that “[i]nfringement on this right is an injustice.”56 A 1977 Tobacco Institute print advertisement criticized calls for tighter tobacco regulation, stating that “In doing so, they threaten the freedom of choice of all by threatening the freedom of choice of some.”57 Underlining what he called the “real issue” at stake, Tobacco Institute president Horace Kornegay exhorted his audience in a 1977 speech to tobacco growers: Let us tell the American people—smokers and non-smokers—that the real issue is freedom of choice. Once the government can control our smoking behavior it can turn the thumbscrews and control other behavior as well.58

The industry used the term “freedom of choice” not only to mobilize public support to avert potential regulation but also to create support for a perceived inalienable right to smoke (Table 1). Tobacco Institute vice president Walker Merryman took to the radio in 1979 stating “I think that since we are a relatively free society we ought to give people the maximum amount of personal freedom and personal decision-making so they can decide for themselves.”70 In a 1983 letter to its


James C. Bowling, vice president and director of sales,

1973


Connie Drath, Tobacco Institute spokesperson

R.J. Reynolds legal counsel

1980

1985

Tobacco Institute

Ann Browder, Tobacco Institute spokesperson

Philip Morris Corporate Affairs Department

1983

1985

1986

Institute

Walker Merryman, assistant to president, Tobacco


1980

1979

Walker Merryman, assistant to president, Tobacco Institute

1979


Author unknown

1978

1978


1978

Philip Morris

Tobacco Institute

Speaker

1970

Year Common knowledge

Assumption of the risk

no. 690016144)

no. TIFL0510415)

no. 2501241597)

no. TI09090441)

no. 515776851)

“The fact that millions of people continue to smoke despite such warnings is merely an indication that they have exercised their freedom of informed choice. In fact, there may be a risk of overwarning the public and reducing the public’s confidence in government.”69(Bates no. 2501443313)

employees

“[Smokers are] intelligent enough to make their own decisions.”

“Tobacco Issues Claims Vs. Facts,” brochure for Philip Morris

Washington Post newspaper article

68(Bates no. TI49670931)

no. TI22590581)

unawareness of government reports and propaganda. It indicates their individual decision to smoke or not after receiving the information government provides.”67(Bates

“The fact that one-third of the adult population continues to smoke does not show

TI31101323)

Education Act of 1983

of those risks.”63(Bates no.

the choice of whether to use them should be left up to the individual.”66(Bates no. TI21361263) “People have made a free choice, which includes the right to take risks and evaluate the degree

about the alleged hazards of any product—liquor, seat belts, saccharine, cigarettes—we think

“Our major message just is freedom of choice. . . . After the government has informed citizens

hearing claims of health risks associated with smoking.”65(Bates

of a smoker involved in one lawsuit testified that ‘you would have to live in a cave’ to avoid

“Everyone has heard of the possible health consequences of smoking. Indeed, a close neighbor

these past 15 years. It’s been pervasive, it’s been persistent. We’ve had so many anti-smoking campaigns one can’t sincerely argue that adult Americans aren’t informed.”64(Bates no. TI9090443)

“[Y]ou would have had to have been a cave dweller to have missed the anti-smoking message

because they derive some satisfaction and enjoyment from it.”64(Bates

constitution so certainly some who have heard the message continue to smoke simply

words on the cigarette packs than know the freedom guarantees in the first amendment to the

Health, Education and Welfare recognizes that Americans are more familiar with the warning

“But beyond that, simply Americans have heard the information, even the Department of

“I think the American people have said ‘Yes’ to information and ‘No’ to intervention.”63(Bates no. TI31101323)

warnings are needed.”62(Bates

that they have exercised their freedom of informed choice on the subject, not that additional

that millions of people continue to smoke, despite the warning label is merely an indication

against smoking suggests that these labels have fulfilled this informational purpose. The fact

“The purpose of warning labels should be to inform. The widespread awareness of the claims

to have been a cave-dweller not to have gotten the message today.”61(Bates

“Chuck, there is not a citizen in this country or anywhere else, I believe, today in the world, that has not heard the message warning, the surgeon-general has determined. Anyone would have

certainly we, more than anyone else, are keenly aware of it.”60(Bates no. TIFL-0505352-TIFL0505353)

“98% of the American public is overwhelmingly aware of all the charges made about cigarettes and

“Awareness of the cigarette controversy is at the 99% level.”59(Bates

Statements

Statement against the Comprehensive Smoking Prevention

Pentagraph newspaper article

Times-Picayune newspaper article

“public and media inquiries”

Legal strategy memo containing communication messages for

Radio interview

Radio interview

Pentagraph newspaper article

Philip Morris communications strategy report

Radio interview

60 Minutes television interview

Media briefing script

Context

TABLE 1—Tobacco Industry Public Relations Statements Using the Legal Defenses of Freedom of Choice Equals Blame: United States, 1970–1986




members, the Tobacco Action Network (an industry-sponsored “grassroots” advocacy organization) encouraged its members to oppose the then-pending Comprehensive Smoking Prevention Education Act, stating “Giving Washington bureaucrats the authority to decide what is an approved lifestyle is inconsistent with the tradition of individual responsibility.”71

“Choice as Blame” in Litigation “Affirmative defenses” to blame tobacco industry’s victims. When faced with hundreds of lawsuits brought by customers who suffered smoking-related illnesses or by their estates, the tobacco industry used established legal defenses to impute blame to its customers who exercised their choice to smoke. The industry defendants and their witnesses argued that the plaintiffs’ freedom of choice to smoke—which the industry promoted so much in its larger PR message—should be accompanied by the concomitant responsibility for the adverse results that that choice incurred. Unlike in the PR context, where freedom of choice implied liberty and individual freedom with no real regard for the consequences, in the context of litigation, choice was equated with blame, which is not surprising when one considers that the object of litigation is to assign liability or responsibility. What is remarkable is the industry’s use of identical terminology (freedom of choice) to imply not liberty, as it does in its wider PR message, but individual blame in the courtroom. Also striking is the powerful effect the lawyers had on shaping the industry’s overall PR messaging once this litigation strategy was solidified and perfected. In a smoker’s injury lawsuit, even if the plaintiff proved his case, the tobacco company defendants could rebut it by invoking “affirmative defenses” such as assumption of the risk and common knowledge.5,72 An affirmative defense is defined as an “assertion of facts and arguments that, if true, will defeat the plaintiff’s or prosecution’s claim, even if all the allegations in the complaint are true.”73(p482) A successful affirmative defense can reduce or even eliminate the damages a plaintiff can collect. The “assumption of the risk” defense asserts that the plaintiff knew about and voluntarily undertook the risk, such as smoking cigarettes.5 Tobacco companies argued that injured smokers could not recover because they made a conscious

choice to embrace a known risk—that cigarette smoking would make them sick—and they could have stopped if they had chosen to. The passage of the FCLAA gave tobacco industry defendants what they claimed was a congressionally sanctioned assumption of the risk assertion, something which a tobacco insider later confessed “we desperately needed.”48(p210),72 Using the “common knowledge” defense, defendants argued that the plaintiff had engaged in an activity that involved obvious or widely known risks (publicized, for instance, by numerous surgeon general’s reports and governmental and public health advocates’ education campaigns), and, thus, tobacco companies should not be liable.74,75 In other words, those who began smoking after the passage of the FCLAA had to accept responsibility for their decision—they had all the information they needed to avoid the negative consequences of tobacco smoking. The common knowledge and assumption of the risk defenses were (and continue to be) powerfully effective because they employ rhetoric that taps into jurors’ cultural assumptions about self-reliance. Such arguments depend on jurors’ unawareness about the extent of cigarettes’ addictive properties, as well as ignore the fact that almost 90% of adult smokers began smoking when they were underage,76 when decision-making capabilities in the brain were not yet fully formed, the tendency to engage in risky behavior is higher, and factors such as mortality or even morbidity do not receive mature consideration.77 Also elided in the common knowledge argumentation is the tobacco companies’ use of relentless marketing to attract customers, as well as their formulation of their product to be highly addictive.1 Importantly, these defensive tactics shift the jurors’ focus from corporate responsibility and the behavior of the defendants to individual responsibility and the perceived moral weakness of the injured or deceased plaintiff. “Choice as blame” strategy in tobacco litigation manuals. Research into the tobacco industry’s internal documents yielded voluminous and detailed litigation instruction manuals written for and by the industry’s lawyers in the midst of an onslaught of cases during the 1980s, referred to as the “second wave” of tobacco cases, during which the industry switched from primarily arguing that smoking does not cause disease to emphasizing common knowledge,


assumption of the risk, personal responsibility, and freedom of choice themes.77,78(p485),79 These manuals contained instructions and strategic plans for litigation defense, including the use of affirmative defenses, as well as the “choice as blame” or personal responsibility argumentation that was being applied successfully in the courtroom.80 Calling the period of time before Congress passed the FCLAA “a real window of vulnerability,”80(Bates no. 282013004) the lawyers asserted the importance and delicacy of emphasizing the common knowledge defense, stating “This is, of course, another one of the fine lines so evident in this case. We must show the history of dire warnings without appearing to indict the industry for selling poison.”80(Bates no. 282013294) In addition to alleging widespread common knowledge about the risks of smoking, the tobacco defendants put particular emphasis on the knowledge of risks a specific plaintiff had. This assumption of the risk defense often alleged that the plaintiff chose to smoke because she benefited in some way and made a rational choice to value that benefit above any risks she was taking, thus exonerating the cigarette manufacturer from any responsibility. One legal training manual succinctly stated the rationale for using the assumption of risk defense: In attempting to depict the benefits [of smoking] as real, we offer not only an explanation other than addiction for a plaintiff’s continued use of the product, but we legitimize choice.80(Bates no. 282013287-- 282013288)

The manual’s authors realized that the question of addiction was a crucial one that could provide a jury with a justification to reject assigning any responsibility to the smoker for her injuries, observing that “Our purpose is to get smoking back into the acceptable range so that our free choice argument is not overwhelmed by grisly statistics.”80(Bates no. 282013058) The manual summed up the bottom line goal to shift responsibility and blame toward the victim by using the affirmative defenses: “How best to blunt the plaintiff’s anticipated attacks on corporate conduct while keeping the focus of each case on the particular plaintiff and his choices is the fundamental tactical problem posed by this litigation.”80(Bates no. 282013074) Tobacco industry witnesses, prompted by attorneys well-versed in the litigation strategy laid out in the legal training manuals, emphasized



the affirmative defenses in their testimony to impute blame to the victim. Reflexively, tobacco industry attorneys and witnesses infused the concept of choice with the onus of blame (Table 2). For instance, in a 1985 trial, a defense attorney asked a plaintiff’s medical witness the following question: “The decision to smoke is one which is a matter of free choice and if you exercise that free choice to smoke, then it’s important that you take personal responsibility for that decision, isn’t it?”90 In 1992, the president of the Tobacco Institute testified unequivocally about the public’s common knowledge about the dangers of cigarettes, misstating that “there is a high level of awareness that 98 percent of the people believe that they’re going to get cancer if they smoke cigarettes.”91(p1610) Melding both the common knowledge and assumption of the risk defenses in a 1984 trial, a senior vice president for Philip Morris opined [T]he public has been warned and over-warned for decades and the research that I have seen also tells me that people know the accusations against cigarettes far better than they know the national motto or in fact anything else in society, that people feel that they have been warned and very heavily so for decades.92(p201)

In the opening arguments of the high profile trial of Cipollone v. Liggett Group,93 the first smoker’s case in which a jury actually awarded the plaintiff any damages and during which the industry heavily emphasized its personal responsibility rhetoric, one of the defense attorneys hammered home the theme that the price of freedom of choice is blame for the consumer, not the manufacturer of a deadly product: Now, what the evidence will show is that Mrs. Cipollone smoked because she enjoyed smoking, it gave her a great deal of pleasure. She liked it. . . . Now, Rose Cipollone made that choice for herself. . . She did what she wanted to do. . . . This woman was a determined woman who was used to making choices for herself, not just with regard to smoking, but on other aspects of her life.94

The defense closed its case with an entirely one-sided allocation of responsibility: Mrs. Cipollone made an informed choice. The choice in this country people have a right to make, to use products such as cigarettes, to engage in activities that involve risks.95

“Choice as blame” litigation strategy and the larger public relations message. Internal corporate documents reveal collaboration between the tobacco industry’s attorneys and its

executives to form a cohesive PR message (which includes marketing, public persuasion, and political lobbying) based on the same personal responsibility rhetoric imputing blame to the smoker that had been perfected in the courtroom. A 1981 messaging strategy memo by a Tobacco Institute PR executive openly acknowledged tobacco industry lawyers’ help with forming its parallel PR and litigation messaging. The memo’s author enumerated “some fundamental rules of effective communication,” the formation of which she credited to “the help of our lawyers.”96 A Philip Morris executive wrote in a 1985 issue brief about how, in addressing “the media, politicians, and health bureaucracies” the company strives to “fully incorporate input by legal counsel and scientific advisors [emphasis added].”97 The issue brief employed the “choice as blame” message, while intertwining the “choice as liberty” message: The consumer’s right to decide and to be informed; the manufacturer’s right to inform— these are the essence of liberty at the commercial level. It all comes down to the individual’s right to make up his own mind and to take responsibility for his own actions.97

Having once been a legal strategy reserved solely to persuade jurors, the affirmative defenses and choice as blame rhetoric evolved and were specifically acknowledged among tobacco industry executives as key PR messaging tools in convincing the general public and regulators that the industry did not bear responsibility for the damage its products caused, nor should it be subject to regulation or other interventions to curtail its activities. The industry’s goal was to infuse its broader PR message with its litigation rhetoric to assist not only in selling more product, but also to muddy the waters in regard to litigation and regulation, thus creating synergy between the different fields and forums of communications. Publicly, industry spokespeople increasingly began to employ the choice as blame rhetoric in ways that emphasized the concepts underpinning the common knowledge and assumption of the risk defenses. Speaking to a radio interviewer in 1980, Tobacco Institute spokesperson Connie Drath addressed the public’s knowledge of the dangers of smoking by using language embodying the common knowledge defense, stating


[Y]ou would have had to have been a cave dweller to have missed the anti-smoking message these past 15 years. It’s been pervasive, it’s been persistent. We’ve had so many anti-smoking campaigns one can’t sincerely argue that adult Americans aren’t informed.64

The Philip Morris Corporate Affairs Department issued a brochure entitled “Tobacco Issues Claims Vs. Facts” in 1986, during the time the Cipollone case was being litigated, which contained a statement incorporating the assumption of the risk defense: The fact that millions of people continue to smoke despite such warnings is merely an indication that they have exercised their freedom of informed choice. In fact, there may be a risk of over-warning the public and reducing the public’s confidence in government.69

Statements such as these show the crosspollination between purely PR rhetoric and themes and arguments honed by the industry’s lawyers during the course of litigation that sought to blame the victim. Moreover, they show the linguistic slight-of-hand by giving multiple meanings to the concepts of freedom of choice and personal responsibility.

DISCUSSION The tobacco industry has used both PR messaging and litigation defense concepts to fend off the onslaught of public criticism which charges that tobacco products are harmful and should be more heavily regulated, and that industry consumers should be compensated for the harms caused by these products. In speaking with its consuming public as well as skeptical legislators contemplating stricter regulation, the industry focuses its message about freedom of choice as representing a perceived inalienable right to smoke without government intervention or interference. The industry appeals to the “rugged individualism” that so pervades US culture and ideology. The act of smoking is thus converted from a mere decision to purchase and use a product into an ennobled stand for liberty and civil rights. On the other hand, when tobacco companies are being challenged by a plaintiff’s attorney whose goal is to gain compensation for the damage its products had caused his client, the industry defendants turn the concept of freedom of choice on its head by infusing that term with elements of blame and personal


Television interview opposing Health Secretary Joseph Califano’s push for federal tobacco control programs


Unnamed Tobacco Institute spokesperson

Horace Kornegay, president of the Tobacco Institute



Horace Kornegay, president of the Tobacco Institute

Bob Roach, Brown & Williamson manager of corporation

communications

1977

1977

1977


1978

1978

1978

1978

inaccuracies. It is based on a fundamental misconception of the role of government in a free society. Despite the Secretary’s references to the importance of ‘freedom, free will, and free

no. 503801594-503801595)

Continued

the tobacco industry and even more importantly, to control the lives of those people who choose, out of freedom of choice, to smoke.”84(Bates no. 680204682)

American smokers. . . . I think Secretary Califano has taken on a personal crusade to attack

another attempt by a large federal agency to intrude upon the personal habits of 60 million

“Well, we’ve not seen the complete laundry list of proposals, but we’re certainly disturbed by

freedom of choice.”83(Bates

proposals he has made, at least half represent the intrusion of government into individual

choice,’ the program he has proposed depends chiefly on coercion. . . . Of the many

“But I must emphasize that the basic flaw in [Califano’s] program goes beyond factual

Environment opposing Health Secretary Joseph Califano’s push for federal tobacco control programs

when they tried to prohibit the use of alcoholic beverages in this country.”61(Bates no. TIFL0510417)

first of all, you can not [sic] legislate personal behavior, the government tried that . . . years ago,

a decision already. We don’t need more governmental regulation of our personal behavior, because

of get off our backs! And leave the informed consumer public alone, because people have made

“Well we would like to have the Federal government, and all of the anti-smoking industries, just sort

the sixty-million adults who have decided in the United States to become smokers. Whether these people indulge in the habit or not, it’s really no one’s business.”61(Bates no. TIFL0510416)

has been made, it’s none of the Federal government’s business or anyone else’s business, whether

“We feel that the decision to smoke or not to smoke is a personal decision. And once that decision

Speech before the House Subcommittee on Health and the

Radio interview

Radio interview

00499802)

choice. Once the government can control our smoking behavior it can turn the thumbscrews and control other behavior as well.”58(Bates no.

“Let us tell the American people—smokers and nonsmokers—that the real issue is freedom of

Growers Information Committee

the research we need to resolve the smoking controversy.”81(Bates no. TIFL0510816) “We feel that informed consumers should be able to make their own decisions vis-a`-vis tobacco, saccharin, or any other consumer item.”82(Bates no. TIMN0118415)

There’s been too much preaching, propaganda and polemics. Those things will never replace

don’t need the Cancer Society or anybody else including us to make up your mind for you.

“And as to whether you smokers out there light up or not, that’s your personal decision. You

freedom of choice of all by threatening the freedom of choice of some.”57(Bates no. 500819192)

measures against the over 50 million smokers of the country. In doing so, they threaten the

“Today there are, among the more ‘anti’ of antismoking groups and individuals, those who, relying on public acceptance of what they ‘know that ain’t so,’ urge campaigns of repressive

be denied the freedom to make informed choices [emphasis in original].”56(Bates no. 501361366)

make a proper choice there should be full disclosure of all pertinent facts. But, nobody should

Freedom of choice is the essential premise of American democracy. We recognize that to

“Freedom of choice is an American birthright. Infringement on this right is an injustice. . . .

Statements

Statement at the 19th Annual Meeting of the Tobacco

cigarette package warnings

Associated Press newspaper article; statement in response to Federal Trade Commission recommendation for stronger

Smoke Out

Response to WTOP-TV’s editorial about The Great American

Print ad copy

The Tobacco Institute

1977

Communications memo containing public relations messages

Context

Batten, Barton, Durstine & Osborn advertising firm

Speaker

1976

Year

TABLE 2—Tobacco Industry Public Relations Statements Employing the Concept of Freedom of Choice Equals Liberty: United States, 1976–1983




inconsistent with the tradition of individual responsibility.”71(Bates Comprehensive Smoking Prevention Education Act of 1983

no. TI03310696)

“Giving Washington bureaucrats the authority to decide what is an approved life-style is

tobacco advocacy organization urging them to oppose the

Tobacco Action Network 1983

Letter to members of this industry-sponsored “grassroots”

Walker Merryman, vice president of the Tobacco Institute 1979

personal freedom and personal decision-making so they can decide for themselves.”70(Bates no. TI01550631)

“I think that since we are a relatively free society we ought to give people the maximum amount of

Philip Morris 1978

Radio program

no. 2501241574)

[emphasis in original].”89(Bates

personal preferences such as smoking. However, government intervention which forces

citizens to act in certain ways (i.e. quit smoking, exercise more, eliminate or include certain foods or beverages in one’s diet, avoid certain sports, etc.) is improper and unnecessary

“In most societies, the role of government is to inform citizens of health controversies involving

aren’t informed unless you do what they say?”88(Bates no.

Communications memo containing public relations messages

issue. Califano says he wants to inform people. But where does it end? Will it end when you

control programs

680204455)

“Eventually it always becomes an issue of civil liberties. The health issue is next to the moral

Health Secretary Joseph Califano’s push for federal tobacco

Fred Panzer 1978

control programs

Chicago Tribune newspaper article; statement opposing

“They first tried scare tactics by saying it’s a health hazard. Now they’re trying to make smokers social outcasts. Is that really supposed to be government’s role?”87(Bates no. TI03580513) Unnamed R.J. Reynolds Tobacco executive 1978

Los Angeles Times newspaper article; statement opposing Health Secretary Joseph Califano’s push for federal tobacco

no. 503646982)

“The Tobacco Institute[:] Freedom of choice is the best choice.”86(Bates Tobacco Institute 1978

Tagline for print ad

no. 10421182)

nonsmoker.”85(Bates

to decide individual lifestyles, to invade the minds of citizens or use the coercive reach of for federal tobacco control programs

federal funding on matters as personal and private as whether one chooses to be a smoker or

“No elective nor appointive office in the land endowed by the people’s law grants the authority Statement opposing Health Secretary Joseph Califano’s push William F. Dwyer, vice president of the Tobacco Institute 1978

TABLE 2—Continued


responsibility. People who choose to smoke are no longer portrayed as patriots taking a courageous decision to declare their individual rights but rather as highly informed smokers whose behavior was intentionally risky and too foolhardy to merit compensation. Eventually, such concepts as common knowledge and assumption of the risk began to cross over from the courtroom to the media, industry propaganda, and regulatory hearings. In other words, the lawyers were influencing the PR gurus, which resulted in a particularly effective type of rhetoric. Especially because the tobacco industry has learned through its long history of litigation how to use virtually the same phrases to have diverse meanings depending on the context and audience, advocates must develop a more sophisticated and nuanced comprehension of this rhetoric and find a way to help the public and regulators decipher and counter the industry’s strategic argumentation. Understanding the rhetoric and framing that the tobacco industry’s spokespeople and lawyers employ is essential to combating and overcoming its effective protection of the industry’s status quo and the resulting devastation of the public health.98,99(p250) Other frames, such as “public health crisis” and “people vs profits,” can underscore the importance of the collective responsibility to address the pandemic of avoidable injury and death that smoking has caused and “expose the limits of the norm of individual responsibility.”98(p321) Instead of allowing the tobacco industry to deflect the focus of the debate onto the individual use of tobacco and shift responsibility to the customers exercising their “freedom of choice” to smoke, advocates should frame the discussion with a broader allocation of responsibility that emphasizes the harm the product causes and the industry that produces it, as well as on the addictive nature of the product and the pervasive and deceptive marketing that attracts smokers in the first instance. Using symbolism and effective imagery is vital to framing an issue. A particularly successful use of frames in the battle against Big Tobacco was nonsmokers’ rights advocates’ rhetoric conveying the need for comprehensive workplace smoking bans to prevent exposure to harmful secondhand smoke by comparing the dubious efficacy of a smoking section in a restaurant to a peeing section in a swimming



pool.100 Another way to frame the discussion is to turn the personal responsibility trope around on the industry and emphasize that it is freely choosing to produce and sell a dangerous and deadly product that eventually kills half its customers, while disavowing its own responsibility. Emphasizing the failure of corporate responsibility has been an effective way of denormalizing the tobacco industry and creating support for tobacco control measures.40 By framing the discussion in terms of the origin of the harm, those who advocate more rigorous regulation and legal redress can change social norms and generate public support.101 Advocates and scholars have called for a broader movement that uses public health advocacy and interventions to change corporate behavior that threatens the public health,102 and have repeatedly pointed out the object lesson the tobacco wars present in dealing with other corporate disease vectors. As industries with products as diverse as food and SSBs,16,103,104 alcohol,105 dirty energy,106 and electronic gambling machines38,107 adopt aspects of Big Tobacco’s playbook—particularly its personal responsibility messaging—to avoid regulation and liability, such an understanding can inform advocacy to curtail corporate influence on health across a variety of policy domains.108 For example, the alcohol industry frequently uses the terms “responsible” and “responsibly” to describe its customers’ duties to society at large, while rhetorically exempting its own product and marketing practices from any similar burden. Recent studies have shown that alcohol companies employ corporate social responsibility rhetoric and tactics with the goal of “framing how personal responsibility associated with alcohol consumption should be understood and communicated,”37(p2) while simultaneously using the good will it hopes these programs will generate to sell more product.109 The harm caused by alcohol has been termed an “industrial epidemic,” and recommendations for a public health response include using similar framing and advocacy tactics as those used against the tobacco industry.105 Obesity and related diseases caused by the consumption of junk food and SSBs also have become leading contributors to preventable disease, and are a prime target for public health advocates.36,110 In early 2013, Coca-Cola debuted a pair of advertisements and a Web site

touting its lower-calorie products and trumpeting its intention to be part of the solution in addressing obesity, while emphasizing how its customers need to consume its products responsibly by balancing enough exercise with their caloric intake.111 The industry-funded Center for Consumer Freedom is a front group originally created by the tobacco industry in its fight against public smoking restrictions but which has now evolved to advocate for food and SSB manufacturers. The group, whose corporate motto is “Promoting Personal Responsibility and Protecting Consumer Choice,” refers to advocates who focus on the harmful effects of SSBs as “soda scolds,” and argues that no limitations on the marketing and sale of these products is necessary where common sense would serve just as well.112 An effective response to these types of arguments would be to point out that the SSB industry irresponsibly markets its products to vulnerable consumers such as young children, who are not expected to exercise personal responsibility; indeed, it is society’s responsibility to protect them, including through effective regulations and taxation.113 The electronic gambling machine manufacturers and casino industry claim that those who gamble excessively are lacking in moral fiber and are irresponsible, but advocates can point to science that has shown that the machines are designed to addict and tap into brain functions that override any sense of agency or responsibility, in a manner similar to the effect of nicotine in cigarettes.38 More study and activism is needed to duplicate the success of tobacco control advocates’ efforts and translate it to a broader category of corporate disease vectors. At the same time, continued vigilance about how the tobacco industry frames and applies its rhetoric and continuing innovation in countermarketing are needed to continue to confront the tobacco industry’s ongoing threat to the public health. j

About the Authors Lissy C. Friedman and Mark A. Gottlieb are with the Public Health Advocacy Institute, Northeastern University School of Law, Boston, MA. Andrew Cheyne is with Berkeley Media Studies Group, a project of the Public Health Institute, Berkeley, CA. Daniel Givelber and Richard A. Daynard are with Northeastern University School of Law. Correspondence should be sent to Lissy C. Friedman, Senior Staff Attorney, Public Health Advocacy Institute, 360 Huntington Ave, 117 CU, Boston, MA 02115 (e-mail: [email protected]). Reprints can be


ordered at http://www.ajph.org by clicking the “Reprints” link. This article was accepted July 14, 2014.

Contributors L. C. Friedman originated the design of the study; conducted tobacco industry document, media, and legal research; and was the main author. A. Cheyne conducted media content analysis and contributed to the writing. D. Givelber helped write the discussion about the use of affirmative defenses in tobacco litigation. M. A. Gottlieb edited the article. R. A. Daynard helped design the study and guided the analysis, as well as edited the article.

Acknowledgments The authors wish to acknowledge grant support from the National Cancer Institute (2R01CA087571). The authors thank the following colleagues and students for their assistance: Berkeley Media Studies Group: Pamela Mejia, Priscilla Gonzalez; Public Health Advocacy Institute: Maggie Corcoran; Northeastern University School of Law students: An Duong, Julie Meyers, Glynis Ann Ritchie, Katelyn Blaney, Meredith Raley.

Human Participant Protection This study required no institutional review board approval because human participants were not involved in this study. The study involved research on existing documents.

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