Former FDA Chief: Cig Makers Lied

The former head of the Food and Drug Administration testified Thursday that cigarette makers manipulated nicotine to keep smokers addicted, a central allegation in the federal government's $280 billion lawsuit against the industry.

David Kessler, former FDA commissioner, appeared in U.S. District Court for cross-examination by defense lawyers about his investigation of the industry in the 1990s.

The Justice Department alleges tobacco companies lied to the public for years about whether nicotine was addictive, whether they manipulated nicotine and about whether their products caused diseases.

Brown and Williamson attorney David Bernick tried to paint Kessler as overzealous and eager for media attention in the 1990s when he characterized nicotine as a drug and set out to regulate cigarettes. Bernick quoted Kessler as talking about "goading Congress" and "circling the White House.

Kessler said the FDA investigation revealed that nicotine levels in cigarettes were controlled by the companies. He said the companies managed to keep nicotine levels up, even as they lowered tar levels, by blending different kinds of tobacco leaves to make the product.

"The manufacturer had to be controlling and manipulating the level of nicotine in these brands," he testified.

He also said industry documents indicated ammonia was added to cigarettes to enhance the effects of addictive nicotine, an allegation the tobacco industry denied Wednesday in opening arguments.

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 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.

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.

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 Tobacco Co.; Liggett Group Inc.; Counsel for Tobacco Research-U.S.A.; and the Tobacco Institute.