Secondhand smoke dispute crucial issue in government's $280 billion tobacco trial

WASHINGTON (AP) _ Secondhand smoke can cause cancer. It's what the surgeon general says. So too the Environmental Protection Agency. And the World Health Organization. <br/><br/>To the tobacco industry,

Sunday, November 14th 2004, 12:31 pm

By: News On 6

WASHINGTON (AP) _ Secondhand smoke can cause cancer. It's what the surgeon general says. So too the Environmental Protection Agency. And the World Health Organization.

To the tobacco industry, however, the link is not clear.

This dispute is a crucial issue in the government's trial against the nation's largest tobacco companies. The $280 billion sought is the most ever in a civil racketeering case.

The trial, which comes six years after the states reached settlements worth $246 billion with the industry to recoup the cost of treating sick smokers, is in its third month in U.S. District Court in Washington and probably will continue for several more. Testimony was to resume Monday.

The Justice Department alleges the industry engaged in a five-decade conspiracy to deceive the public about the health hazards of cigarettes. To win, the government must show the industry still is acting fraudulently or is likely to do so in the future.

Proving that the industry is misleading the public about secondhand smoke could be an essential element.

``It's probably the best evidence available that the tobacco industry hasn't truly, fundamentally reformed,'' said Matthew Myers, president of the Campaign for Tobacco-Free Kids.

Government lawyers say the industry's denials about secondhand smoke are reminiscent of the companies' decades-old assertion that smoking did not cause cancer. That stand was dropped only in the past five years, against overwhelming evidence.

Cigarette makers say evidence tying secondhand smoke to lung cancer is much weaker.

``We think there's a legitimate reason to believe that this is not a done deal scientifically. It is not a closed case by any means,'' said Seth Moskowitz, a spokesman for Reynolds American Inc., the No. 2 cigarette maker.

Government lawyers, who refused to speak publicly about the case outside of court, have argued in filings and before Judge Gladys Kessler that the industry has tried to create a controversy about secondhand smoke where none exists.

Tobacco company lawyers disagree.

``Statistically, the evidence isn't strong enough,'' said Dan Webb, a lawyer for the leading cigarette manufacturer, Philip Morris USA.

Numerous studies in the United States and elsewhere show that nonsmokers who are married to smokers, or who work with them, have about a 20 percent to 30 percent greater chance than other nonsmokers of contracting lung cancer. By comparison, smokers are about 20 times more likely to get lung cancer than nonsmokers.

The government estimates secondhand smoke causes 3,000 lung cancer deaths annually in nonsmokers in the United States.

The industry says the elevated risk seen in the secondhand smoke studies is too small to be statistically significant.

``To tease out that kind of excess risk is really very difficult,'' said lawyer David Bernick, who represents Brown & Williamson Tobacco Corp.

Bernick and industry officials say factors such as diet and lifestyle also could be responsible.

Some tobacco company representatives even suggest people mislead investigators by saying they do not smoke when they really do. They say that would particularly skews studies from countries where women are reluctant to admit to lighting up.

Scientists have considered those arguments in their studies and still found the evidence conclusive that secondhand smoke leads to lung cancer for some people, said Terry Pechacek, the associate director for science at the Centers for Disease Control's Office of Smoking and Health.

``The simple fact is that this is no longer an issue of debate within the scientific community,'' Pechacek said.

The first surgeon general's report stating that secondhand smoke can lead to cancer was published in 1986.

Webb attacked that report's credibility in court by producing a letter written by then-Surgeon General C. Everett Koop 11 months before the report was released, saying the evidence was not firm enough to call secondhand smoke a health hazard.

The government has produced its own documents to try to demonstrate the industry has engaged in a public relations campaign to play down worries about secondhand smoke, known within the industry as ``environmental tobacco smoke,'' or ETS.

One document from a 1986 Philip Morris meeting includes a heading that reads, ``How to alter public perception that ETS is damaging.''

Government lawyers have focused on an industry-created organization that financed research into secondhand smoke in the 1990s. They produced an industry memo that said tobacco company officials must play an active role in the organization for it to be of value to cigarette-makers.

Another memo stated that a 1989 industry-backed conference on secondhand smoke was designed to ``neutralize'' reports scheduled for release on the topic.

Industry scientist Sharon Blackie testified she believed the purpose of the meeting had been ``to shed light on the science and to point out flaws in the science.''

Bernick said that does not prove the industry was lying or trying to deceive the public.

``The idea that we really knew the jig was up; it's just not there,'' Bernick said. ``This is not fraud. This is a disagreement about a technical scientific matter.''