The tobacco industry won a big victory Friday when the U.S. Court of Appeals for the District of Columbia ruled in its favor, against the U.S. Justice Department. The court's ruling means that the Justice Department cannot force the industry to disgorge $280 billion in past profits, even if it wins its fraud and racketeering case against the cigarette makers.
Little media attention has been paid to this important decision in a landmark case concerning a major public health threat. The near-invisible nature of the ongoing federal trial to determine whether Big Tobacco engaged in a conspiracy of fraud and deceit may represent another aspect of that very conspiracy - the successful efforts of tobacco industry PR to influence journalists. Internal tobacco industry documents shed light on the largely hidden phenomena of corporate tobacco lobbyists courting favor with editorial boards.
During President Bill Clinton's January 1999 State of the Union address, he announced that he had instructed the Department of Justice to develop a litigation plan against major tobacco companies. This became the lawsuit seeking $280 billion in damages - the largest punishment ever sought from cigarette manufacturers - that is currently being heard before U.S. District Court Judge Gladys Kessler. The core of the government's case, brought under the Racketeer-Influenced and Corrupt Organizations Act designed to fight organized crime, is that major tobacco companies defrauded smokers by concealing health risks.
In response to the lawsuit, Philip Morris hired the PR firm BSMG Worldwide (now part of Weber Shandwick, the world's largest PR firm) to craft a plan aimed at influencing media coverage of the case. The PR strategy was to quietly meet with the editorial boards of many major media outlets, while simultaneously mobilizing conservative allies "to help provide a 'echo chamber' of opinion consistent with our messages." In their February 1999 draft plan, BSMG sketched how PM should handle the looming legal and media crisis. BSMG suggested "a focused, but aggressive communications strategy over the following weeks," to "educate key allies, reporters, editorial writers and columnists about the government's lack of legal cause of action."
One strand of PM's media strategy was to try to sell the story that Big Tobacco was a reformed sinner. "Reinforce the record of what the industry has done to date to address the concerns of the public and generate discussion about whether the government is piling on an industry that has, and continues to, change in desirable ways," BSMG suggested. In order to influence the U.S. public and legislators, the campaign was "highly focused on journalists familiar with the substance of the issues or receptive to our point of view." To get maximum effect from this media outreach, BSMG recommended working with such allies as the libertarian Cato Institute, the conservative Heritage Foundation and the U.S. Chamber of Commerce, along with "other potential third parties" to set up the "echo chamber" mentioned above.
Suggestions on how to hide Big Tobacco's message behind the mask of such "third parties" included the establishment of a speakers bureau "to expand the stable of surrogates to carry our message," and "placement of surrogates on local radio programs or other activities." The goal, explained BSMG, was "to build a steady drumbeat of discussion" about why the government's case against Big Tobacco was without merit. Once the echo chamber was ready, PM would offer briefing materials to a number of influential conservative columnists -- including Jacob Sullum, George Will, William Safire, Paul Gigot and James K. Glassman -- and set up editorial board briefings in the top 25 media markets. This, according to a later iteration of the PR plan, was not just to provide information on PM's position, but also to "identify the key editorial writer for each paper and assign an industry spokesperson to continue the dialogue with the writers and maintain communications and rapid response."
The industry developed and tested the effectiveness of various message points by polling samples of its target audiences. The results of that research were outlined in a memo to PM staff from a BSMG subsidiary, Sawyer Miller Consulting. One of the "less effective messages," it reported, was the idea that "the industry has been punished enough." BSMG suggested focusing on other, more persuasive themes, with PM tailoring different pitches to different media outlets. The Wall Street Journal, Atlanta Journal and the Washington Times, BSMG suggested, should be given the "big government, big tax message," while the Detroit Free Press and Chicago Tribune should be served the "tax hikes on working class message." The Arizona Republic got the "government gone too far message."
In September 1999, BSMG evaluated the pro-tobacco media work to date. National newspapers, aside from the conservative Washington Times, all supported the Justice Department lawsuit. However, Big Tobacco had friends in the regional media, where more than half of editorials opposed the suit. "Clearly the groundwork laid over the past many months through meetings with editorial boards, mailings and blast faxes have paid off," BSMG wrote to PM's federal lawsuit group. While satisfied that its program of "regular engagement with reporters, particularly those at national newspapers, has had an effect on news coverage of the government's filing," BSMG noted that "there were no references to the fact that tobacco use imposes no net costs on the government."
BSMG's Scott Williams suggested that "efforts should be made to push out" a June 1999 Congressional Research Service report by Jane Gravelle. Her report argued that smokers did not impose net healthcare costs on government and disputed the Environmental Protection Agency's assessment of the impact of second-hand smoke. However, BSMG recognized the sensitivity of selling this message. "Industry may not be the best carrier of this message, it may be necessary to engage think tank allies and legal scholars who can credibly approach the subject from an intellectual perspective," BSMG coyly noted.
Philip Morris's November 1999 plan proposed editorial board meetings with the Washington Post and New York Times. "While we do not expect favorable editorials to result from such meetings we would like to hope the fundamental substance of our arguments which question the integrity for the government's effort would be considered in future editorial analysis," the plan stated. Moreover, it was important that an opportunity be made to allow the editorial boards "to see a human face with the industry."
A March 2000 BSMG memo noted that both the Times and Post had been contacted. "We know that the initial 'hook' at this moment will be the regulatory issues, but the briefings will segue from that question to 'tobacco has changed.' The issue of regulating 'marketing to kids' will be a jump-off point into the MSA," the memo noted. (MSA is the acronym for the 1998 Master Settlement Agreement between state attorney generals and the tobacco industry.)
The documents currently available on PM's Department of Justice public relations plan peter out in early 2000. However, after the Department of Justice case opened in late September 2004, a vice president of corporate communications for the Altria Group (PM's re-named parent company) echoed BSMG's "reformed sinner" message. "The government will focus on the past," he complained, "with little or no mention of the significant changes that have been imposed on the industry."
After some initial coverage of opening courtroom statements and the recent appellate court decision, journalists have largely ignored what is likely to be a long trial drawing on millions of pages of internal industry documents. It is impossible to measure how much of this media disinterest can be attributed to PM's public relations efforts, but Big Tobacco is undoubtedly pleased by the media's silence.