STATE OF MINNESOTA AND BLUE CROSS AND BLUE SHIELD OF MINNESOTA, PLAINTIFFS,
V.
PHILIP MORRIS, INC., ET. AL.,
DEFENDANTS.
TOPIC: TRIAL
TRANSCRIPT
TRANSCRIPT OF PROCEEDINGS
DOCKET-NUMBER: C1-94-8565
VENUE: Minnesota
District Court, Second Judicial District, Ramsey
County.
YEAR: March
11, 1998
A.M. Session
JUDGE: Hon. Judge Kenneth J. Fitzpatrick, Chief Judge
THE CLERK: All rise. Ramsey County District Court is again in session,
the
Honorable Kenneth J. Fitzpatrick now presiding.
(Jury enters the courtroom.)
THE CLERK: Please be seated.
THE COURT: Good morning.
(Collective "Good morning.")
THE COURT: Counsel.
MR. WEBER: Thank you, Your Honor.
Good morning, ladies and gentlemen.
(Collective 'Good morning.")
CHERYL L. PERRY called as a witness, being previously
sworn, was
examined and testified as follows:
BY MR. WEBER:
Q. Good morning, professor.
A. Good morning, Mr. Weber.
Q. I'd like to start today with an issue that we
just touched on
yesterday. If you'd turn to page 74 of the 1994 Surgeon General's report,
please, and in the upper right-hand column, professor, in that paragraph
that's labeled "Overall" -- or that begins "Overall...," do you see
that?
A. Yes, I do.
Q. That talks about some of the disparity in high
school smoking rates
between African Americans and whites; does it not?
A. Yes. Let me just check.
Q. And -- I'm sorry.
A. Let me just read through it.
Q. Sure.
A. Yes, it does.
Q. And that's high school senior data; correct?
A. Yes, I believe it is.
Q. And one of the things that paragraph does is
it tracks that -- those
rates from 1976 to 1992; correct?
A. Yes, it does.
Q. And in 1976 the high school senior rate for whites,
the prevalence of
daily smoking, declined from -- or was 29 percent, according to that
statement in the Surgeon General's report; correct?
A. I believe that's for females. Oh, okay, 19 --
Daily smoking.
Q. Okay.
A. Okay. Daily smoking --
Q. Okay.
A. -- they were talking about, not current smoking.
Daily smoking.
Q. And that same measure in 1992 was at 20 percent;
correct?
A. I think 17 percent. Am I looking at the right
sentence?
Q. Doesn't --
You see the sentence that says "Among whites...?"
I'm sorry, I may have
confused you with my question, professor. I'm -- I'm -- I'm trying
to get
the -- the -- for whites.
A. Oh, for whites, so not overall.
Q. Yes. I'm sorry.
A. Okay, 20 percent.
Q. From 29 --
Just make sure now that I've gotten you on the right
sentence.
A. Yes, that's right.
Q. Twenty-nine percent in '76, 20 percent in '92;
is that right?
*2 A. Right.
Q. And among African Americans it was 27 percent
in 1976, same measure;
correct?
A. That's right.
Q. And roughly equivalent to the white rate; correct?
A. Yes. Slightly lower, yes.
Q. And by 1992 that rate for African Americans was
four percent. Do I
have that right?
A. Yes. For daily smoking.
Q. So that there was a five-times difference by
1992 in those two rates;
correct?
A. Correct.
Q. And do you also note that among youth in this
same period, use among
white and African American use, use of illicit drugs was roughly equivalent?
A. Among whites and African Americans?
Q. Right. There wasn't a five-times disparity, they
were roughly
equivalent.
Are you familiar with that data, use of illicit
drugs?
A. I haven't really studied that. We could look
it up if you would like.
Q. Um --
A. But I couldn't comment on the, you know, five-time
relationship on
that.
Q. Well -- okay.
A. And my --
Q. Now --
A. My understanding is, in fact, African American
teens also used
marijuana at a lower rate as well, you know, but my -- I would need
to check
the data.
Q. That's not data you're familiar with right now,
to be fair.
A. Well it's not data I would want to quote an exact
percent on. It is
data that I use, and I tend to rely on sources of data when I write
my
papers and teach my classes.
Q. So in this period of time --
And you would agree with me, by the way, that in
this period of time,
advertising and promotional expenses increased by the tobacco companies,
would you not, from 1976 to 1992?
A. That's what we talked about yesterday, yes, they
increased.
Q. And the high school senior rate among whites
that was measured here
went from 29 down to 20; correct?
A. Right.
Q. And the African American rate went from 27 down
to four; correct?
A. Right.
Q. And with respect to this five-times difference,
both the African
Americans and the whites were exposed to advertising, correct?
A. They were both exposed to advertising. But in
fact the African
American community responded to new advertising that was directed at
the
African American community in a much more aggressive fashion. In fact,
one
cigarette that was aimed at the African American community was essentially
withdrawn when the African American community made such a big stink
about
being targeted. So they -- they --
You know, I'm sure they were both exposed to cigarette
advertising, but
that doesn't suggest that that's the only thing going on during this
period.
Q. And indeed, the tobacco companies during this
period of time ran a
number of ads with African American people in the ads; didn't they?
A. I'm quite sure they ran some ads with African
American people in
them.
Q. And the ads where they hired African American
models ran in
communities that had a high percentage of African American residents;
right?
A. I would have to take your word on that, that
you were targeting
African Americans in their community.
*3 Q. Well the question --
Do you know whether the ads that you just said that
you assumed they ran
with African American models, do you know whether those generally ran
in
African American residential areas?
A. I would assume so.
Q. And with --
A. But I would think they would be also in general
magazines that --
that African Americans and others would -- would read. It's not that
African
Americans aren't exposed to the general population.
Q. Right. I didn't mean to suggest that. I was just
--
I mean the ads will appear in different places and
not exclusive one way
or the other.
A. Yeah.
Q. I was just asking about general.
And despite the increase in advertising over this
period, advertising
and promotional expense, we see that high school seniors are reacting
very,
very differently depending upon their ethnicity; correct, based on
that
data?
MS. WALBURN: Objection, asked and answered.
THE COURT: You may answer that.
A. Both of the groups were exposed to advertising.
Different things may
have been going on within the white community and within the African
American community to counteract advertising, and so to draw a direct
one-on-one between advertising and promotional expenses, a one-on-one
relationship, and -- and youth smoking, there are other things going
on that
would impact those rates. So we see the -- the decrease.
Now what's interesting is that the African American
data that you've
shown here goes down to 1992, but it -- then it begins to go back up.
So
other things were -- I mean they -- obviously they're responding to
the
larger social environment, including advertising, after 1992.
Q. And --
A. They didn't continue -- it didn't become a non-issue.
And this is
daily smoking. We're not looking at -- at current smoking, which is
the
general figures we look for. This kind of exaggerates by looking at
daily
smoking among African Americans, who, in general, tend to start smoking
a
little bit later. If we looked at African American data among adults,
we see
that they're smoking at about the same rate as whites. So that in fact
the
African American adolescents catch up, unfortunately, with whites by
the
time they're in their twenties. So something is happening during the
adolescent phase in these communities to delay onset.
Q. And as you said, you can't make a one-on-one
-- a direct one-on-one
between the expenses, the advertising and promotional expenses, and
the
smoking rates; correct?
A. Well what we can say is that advertising and
promotional activities
have a direct influence on teen-age smoking behavior, but it's not
the only
influence. It has a direct influence, as we have been talking about
for
several days now, but it's not the only influence going on in our
communities that will affect youth smoking behavior.
Q. Now you're not saying that there was more education
-- well let me
strike that.
Do you have data that demonstrates there was more
education, more anti-
smoking activity in the African American community for high school
seniors
than there was in the white community? Do you have data on that?
*4 A. Well as I mentioned yesterday, the 1995 Surgeon
General's report
is dealing exactly with this issue of what causes African Americans,
Hispanic Americans and so forth to smoke, and so that was --
Unfortunately, that hasn't been released. There
have been a number of
theories around why the African American community has decreased their
smoking, and one of those has -- has to do with religious influence;
for
example, the Muslim influence, which -- which says, as part of that,
that
one shouldn't be involved in tobacco use as a -- as a -- as a number
of
drugs, that that's part of Muslimism.
Q. And indeed, in some of the studies that have
been cited in the
Surgeon General reports, religious involvement by youth has been shown
to
decrease the risk of using tobacco while under-age; correct?
A. No, that's not what it says. It says attending
-- children who attend
church are less likely to be smokers, so --
But that's not -- also not a very strong factor.
And it doesn't get to
the concept of spirituality or beliefs, it -- it probably reflects
more, you
know, who you're spending your time with. So church attendance did
come out
as one of the, quote, unquote, constructive behaviors young people
can
engage in that's associated with -- with less smoking. But again, that's
not
a very strong factor.
Q. Now the 1994 report wasn't the first of the reports
to analyze issues
regarding the advertising of cigarettes and consumption data; was it?
A. You mean among youth.
Q. Among youth or in general. Other reports have
addressed those issues;
correct?
A. I don't remember the other reports talking about
cigarette
advertising and promotion and its effect on youth smoking behavior.
There
may have been comments made about that, but they certainly didn't go
through
the -- they
didn't have an entire chapter devoted to cigarette advertising and
promotion
and its effects on youth behavior, and they certainly didn't have the
research that I cited on Monday, which is the most prominent research
in the
area that only emerged in the 1990s. So I would imagine some statements
were
made and those statements are most likely outdated.
Q. And some of those reports analyzed issues of
the effect of
advertising on consumption; did they not?
A. You mean advertising in general on consumption
in general?
Q. Right.
A. I would imagine there were some statements made
about advertising in
general and consumption in general. My specific interest is cigarette
advertising and promotion and its effect on teen-agers.
Q. Would you --
A. Which --
Q. I'm sorry, professor.
A. Which, as we saw, the cigarette advertising and
-- and promotion is
about three times more powerful with young people than it is with adults.
So
to the extent we see reports having to do with adults, we need to keep
in
mind it's -- okay, it's much -- it's going to be much more powerful
with
young people.
Q. Could you turn to Plaintiffs' Exhibit 3836, I
-- it's the 1979
Surgeon General's report, and I think it's up there --
*5 A. Yes.
Q. -- in a bound version, professor. Do you have
that?
A. Yes, I do.
Q. Now the pages in that are numbered by chapter
and then dash and then
a page number within the chapter. Do you see that?
A. Yes.
Q. Could you turn to page 18-22 where it says "Mass
Media and Smoking."
Do you see that?
A. Yes, I see that.
Q. Could you read that first paragraph under "Mass
Media and Smoking,"
professor.
A. Yes, if I can take a look at a couple things.
"There is little persuasive empirical research available
on the effects
of television advertising, or its ban, on cigarette sales or on recruitment
to the ranks of smoking. Bans on television advertising for cigarettes
in
several countries, including the United Kingdom, Denmark, Ireland,
New
Zealand, and Italy, seem to have had almost no effect on per capita
cigarette consumption. A highly technical, economic analysis has estimated
that the 1965 ban on television advertising in the United Kingdom produced
a
significant -- a statistically insignificant fall of three percent
in
cigarette consumption. In Communist countries, smoking is prevalent
without
advertising of any sort to support it. Four years after the 1970 ban
on
television advertising in the United States, there was little indication
that this mass medium had a major influence on cigarette consumption.
An
economic analysis by Warner in 1977 suggested, however, that the sustained
anti-smoking activities, including mass media, that have been conducted
since 1964 may have prevented consumption of tobacco from rising even
further than it already has."
Q. Now professor, the fact is that in Communist
countries where there
was little or no advertising, smoking was prevalent and smoking initiation
rates were high; isn't that true?
MS. WALBURN: Objection, beyond the scope of direct,
relevance, and
outside the scope of discovery in this case.
THE COURT: Well you may answer if you know.
A. I don't really know this particular area. I know
a little bit more
recent things, but I -- this is really not my area.
Q. Did you --
Would it be of interest to you as one who is an
expert, who's before the
court and the jury as an expert on the effects of advertising on smoking
initiation, would it be of interest to you to examine data from other
countries where there have been advertising bans, or where there hasn't
been
advertising for many, many years, to see what effect that has on smoking
initiation rates?
MS. WALBURN: Objection, beyond the scope of discovery.
Defendants
refused to produce advertising documents relating to foreign countries.
THE COURT: Sustained.
Q. Is there international data in the international
literature with
respect to the question of whether initiation rates in countries without
advertising are the same as initiation rates in countries with advertising?
MS. WALBURN: Same objection, and relevance.
THE COURT: You may answer that.
A. What I've seen, I saw some of the documents you
-- the tobacco
industry -- produced. I also have reviewed documents, three papers
-- I was
part of the National Cancer Institute of Canada panel, I looked at
three
papers on tobacco advertising bans, one of which, Langesan & Leads
-- or
Miade's 1991 data looked at 22 countries and said that -- that since
1973,
that cigarette advertising bans in these 22 countries had had a moderate
effect on reducing smoking. I also looked at the World Health Organization
report on tobacco bans issued in 1993 in which they said that cigarette
advertising bans had a significant impact on reducing -- on reducing
smoking
rates. I haven't seen anything that specifically looks at teen-agers.
And
also I looked at the documents produced which showed a different side
of the
picture.
*6 So my reading on the literature on tobacco bans
is that it's mixed at
this point, that for the most part the research literature that I reviewed
shows a moderate decrease in per capita consumption of tobacco with
a total
tobacco -- ban on tobacco advertising and promotions in 1990s publications,
but I really felt that since these tobacco bans occurred in other countries
and that the data weren't completely consistent, that I didn't want
to
include that in my testimony because we have a rich source of data
in the
United States which clearly points to the relationship between cigarette
advertising and promotion and teen-age smoking. So I -- I looked at
reports;
they've gone in -- in both directions. And certainly the WH0, World
Health
Organization report, that's a 1993 report, used very strong language
to say
that total ban on advertising and promotion would decrease per capita
consumption of cigarettes -- of cigarettes.
Q. Now professor, you just said that you didn't
want to include this in
your testimony because the ad ban evidence, the data weren't completely
consistent. Do you remember that?
A. They weren't completely --
The papers weren't completely consistent. After
I read your papers, the
ones I had reviewed were pretty consistent and showed a moderate effect.
Also, there's -- another big point is how relevant is this international
data to what's going on in -- in the United States? Other countries
have a
whole different set of cultural standards around smoking. They have
very
different economic conditions. And even the concept of what they do
in
advertising and promotion is very different.
For example, Norway had a complete ban on advertising
and promotions in
1975, a complete ban, and yet when I was at a meeting in Norway in
the early
' 90s, I was walking down the main mall, there's kind of a main mall
in
downtown Oslo, and there was a big store selling Marlboro items with
Marlboro, you know, sweatshirts and so forth. So that, no, they weren't
using advertising and promotion; they had found a different means to
make
people walking billboards within Norway. My understanding is that that
was
disallowed in Norway in 1997.
So we can't really judge very well what's going
on in other countries
and apply it to our own United States because we don't know what's
going on
with them economically, we don't really know what they're -- what they
call
-- cause -- what they call advertising and promotion, because there's
different cultural standards around smoking.
Q. Now I think I asked you whether the reason you
didn't discuss this
was because the data weren't completely consistent. Was that the reason?
MS. WALBURN: Objection, misstates the testimony.
There has been more
than one reason given.
THE COURT: Okay. You'll have to rephrase your question,
counsel.
Q. Let me get back to that question, Your Honor.
The question was: You just said that you didn't
want to include this in
your testimony because the ad ban evidence -- the data weren't completely
consistent. Do you remember that? Is that what you said?
*7 MS. WALBURN: Objection, misstates the testimony.
THE COURT: You may answer that.
A. I believe I said quite a bit more than that.
I said that the papers
-- the papers I had read up to the point of this trial, which included,
for
example, a document from New Zealand that looked at 44 countries and
which
resulted in a total ban on advertising and sponsorship in New Zealand,
that
said that tobacco -- that tobacco -- a ban would reduce consumption.
There's
a Langesan & Miade's article I just referred to that went -- that
looked at
22 countries and said the data was -- was very strong since 1973, that
the
ban had an effect. So up until then --
I saw documents from the tobacco industry showing
the other side of --
of the equation, and so I decided that this really wasn't my area of
interest, I wasn't really looking at international work, I was looking
at
what research we did in the United States. And so it wasn't just that
these
papers were inconsistent, I just didn't think they were as relevant
to my
testimony as the wealth of data we have in the United States.
Q. One of the reasons you didn't include this in
your testimony is
because the academic data weren't consistent; correct?
MS. WALBURN: Objection.
Q. One of the reasons?
MS. WALBURN: Asked and answered.
THE COURT: You may answer that.
A. I can't really judge -- I didn't have time enough
to study the papers
that you presented. The papers I read were pretty consistent on showing
a
moderate effect of cigarette advertising and promotional bans on reducing
consumption. You know, as I said, the main -- you know, the main reason
was
that -- was relevance.
Q. But you did say they weren't completely consistent;
correct, the
academic data on this?
A. The papers produced --
The papers I looked at prior to this testimony were
-- were fairly
consistent. The -- the papers you produced said something different.
So I
didn't have time to study, you know, who -- these papers, what techniques
they used, whether they controlled for economic changes, whether they
controlled for cultural differences, so I couldn't make that assessment.
So
-- you know, so that really wasn't my major reason. My major reason
was
relevance.
Q. And the fact of the matter is, professor, that
with respect to the
main issue you've been talking about, which is whether advertising
causes
youth to smoke, the academic data there isn't completely consistent
either;
is it? Even the post-1994 data.
A. The post-1994 data is overwhelmingly consistent.
It's not a hundred
percent consistent, as is any -- any part of our field, but it is
overwhelmingly consistent. And if you take with it what has come before
and
you add on to it the information presented in the tobacco industry
documents, you get an entire picture, and that entire picture is what
forms
my opinion.
Q. So that the answer is no, the post-1994 academic
literature about
whether advertising causes smoking initiation is not completely consistent?
*8 MS. WALBURN: Objection, asked and answered.
THE COURT: Sustained.
Q. Now I'm going to put "FSU" up here -- I don't
mean Florida State
University, which is one of the country's institutions -- I want that
for
Former Soviet Union and the Eastern Bloc countries.
Now you know for many years there was little or
no advertising of
tobacco products there; correct?
A. I haven't really studied each of -- either of
those areas, so I
really can't attest to that.
Q. Would you rely on the statement in the Surgeon
General's report that
says in Communist countries, smoking is prevalent without advertising
of any
sort to support it? Would you find that statement to be reliable in
the
Surgeon General's report?
A. I'm not sure what it means right now in 1998,
so I'm --
Q. Well --
A. I'm not really going to rely on that at this
point.
Q. Well would you find it reliable as of 1979?
A. I guess I would in 1979.
Q. And you know, don't you, that overall smoking
prevalence rates and
overall smoking initiation rates were equal to or higher than those
in the
West; that is, the rates in the former Soviet Union and Eastern Bloc
countries, in that period?
MS. WALBURN: Objection, relevance, outside the scope
of direct, and
outside the scope of discovery.
THE COURT: You may answer if you know.
A. I really don't know this area.
Q. Doesn't -- would --
Would evidence like that tell you that, wholly without
regard to
advertising, there's some percentage of this population that's going
to want
to use tobacco and smoke cigarettes regardless of whether there's
advertising?
A. Well I'm not sure because I'm not sure what kind
of information they
were getting. For example, I've spent a bit of time in Singapore where
there
is, just like in Norway as I said a few minutes ago, there's no advertising
and promotion there, but there were a lot of walking billboards in
Singapore. They also -- you know, Singapore is a pretty strict country
with
no advertising and promotion, and yet there are quite a number of Western
magazines coming into the country, so that young people are being exposed
to
some advertising and promotions. So I can't --
I don't know what's going on in these countries.
I wasn't there and I
haven't studied this. I have studied what has gone on here. And I don't
think we can make comparisons country by country because there are
huge
cultural differences between countries, there's economic differences,
there's differences in the way tobacco products are sold, who's selling
it,
who's involved in it, et cetera. And so to take, you know, the former
Soviet
Union and to try to apply that to youth smoking in 1998 in the United
States, you know, I really can't make that -- that linkage.
Q. Is --
A. I just don't --
Q. I'm sorry.
A. I really don't think that that is a relevant
argument.
Q. I'm sorry for interrupting you. Are you finished?
A. I am now.
Q. Is Singapore a Communist country, or was it in
1979?
*9 A. No, I don't believe so.
Q. All right. My question was: Does the experience
with smoking
prevalence and smoking initiation in former Eastern Bloc countries
indicate
to you that in countries where there's no advertising or very little
advertising, let's say that, that there is still going to be some percentage
of the population who chooses to smoke?
MS. WALBURN: Objection, asked and answered and relevance.
THE COURT: It's been asked and answered now.
Q. Now you referenced a New Zealand study a moment
ago.
A. I referenced it as one of four studies that I
had looked at.
Q. Now given your involvement in that Canadian project
you mentioned, do
you know that the Canadian government rejected that New Zealand study
as
unreliable?
MS. WALBURN: Objection to the form of the question,
and relevance.
THE COURT: You can answer it if you know.
A. I don't know that.
Q. Now the 1994 Surgeon General report cited three
articles by Professor
John Calfee, formerly of the Federal Trade Commission. Do you remember
that
offhand?
A. No, I don't.
Q. And you were the individual responsible for the
scientific integrity
of the data; correct?
A. Well I think I explained that very carefully
over the last couple of
days, that different researchers wrote the different parts of the report,
they wrote parts of the report such as the health consequences or addiction
among teen-agers that really aren't my area, so I relied on the peer-review
system. So to the extent that they -- Dr. Samet had a reference to
his
chapter, I didn't, you know, check that particular reference out. I
counted
on the peer- review system to make sure that what Dr. Samet said was
the
state of the art at that time.
So in terms of the scientific integrity, it meant
that I made sure this
was a consensus document. Doesn't mean that every single sentence I
know
what it means or I know every reference.
Q. You trusted those who had primary responsibility
for each chapter to
use reliable authors and data sources; correct?
A. For the most part. And I went through the peer-
review system. That
doesn't mean that some of those weren't, but -- weren't completely
reliable,
but, you know, this -- that's true of any book. This was considered
the best
science at that time.
Q. Now could you turn to page 198, professor. And
that's an alphabetical
listing, and I think you'll see in the left-hand column a citation
to work
by John E. Calfee. Do you see that?
A. Yes, I do.
Q. And -- and he was then with the Federal Trade
Commission in 1985,
according to that citation; correct?
A. It means that this particular publication came
out of the Federal
Trade Commission. I don't know for a fact that he was in the Federal
Trade
Commission.
Q. And if you could turn, then, to page 201, professor,
and if you'd
look down in the lower left-hand column, you see two more articles
cited in
the Surgeon General's report in which Professor Calfee was a co-author.
Do
you see those?
*10 A. Yes, I do.
Q. And those both deal with content of cigarette
advertising and issues
of that type. Fair?
A. Yes.
Q. Now --
A. But I don't myself remember those particular
articles.
Q. Now --
So Professor Calfee's work was cited three times
in the Surgeon
General's report in the chapter on advertising and promotion; correct?
A. Yes. I'd like to see where he was referenced,
if you don't mind
taking a few minutes.
You didn't happen to note that; did you?
Q. I didn't, because the citations didn't give index
pages.
A. Yeah.
Q. Do you want to go on, and if you feel a need
to check it based on the
next question, obviously you can do that?
A. All right.
Q. Could you turn to Exhibit -- excuse me, I --
I need to give you the
tab, tab 29, which is Exhibit ASP000003, and can you identify that
from the
cover page and the pages inside as a book entitled "Fear of Persuasion,
A
New Perspective on Advertising and Regulation" by John Calfee?
A. Yes, I can.
Q. And if you go to the next page, you will see
that was published in
1997?
A. Yes.
Q. And this is the John -- same John Calfee, obviously,
who was cited
three times in the Surgeon General's report on advertising-related
issues?
A. Yes. However, I don't know if this book was at
all peer reviewed, and
I am not -- I don't believe I've ever heard of AEI Press, which is
who
published it, or AGORA Association in Switzerland. I -- you know, I've
never
heard of that, AGORA Association. So I don't know if this was a
peer-reviewed book or an advocacy document.
Q. But you do know Professor Calfee was being cited
three times in that
report; right?
A. Yes. But as I've said, I'm not sure in what --
in what context he was
cited. So if we want to go back and see if we were - - you know, what
we
were quoting him on, we can do that.
Q. And if you'd look at page vi, table of contents.
A. Yes.
Q. You'll see there he discusses in that chapter
tobacco advertising
bans. Do you see that from the table of contents, professor?
A. Oh, which part? Chapter --
Q. Chapter five, top of page vi.
A. Yes, I see that he wrote a chapter on advertising
bans.
Q. That specifically deals with -- with tobacco,
in part; correct?
A. That's --
Yes.
MR. WEBER: Your Honor, I'd move the admission of
ASP000003 as a learned
treatise by an author cited three times on advertising issues in the
'94
report.
MS. WALBURN: Objection, proper foundation hasn't
been laid. This book
was not cited in the Surgeon General's report, and it's not peer reviewed.
THE COURT: Sustained.
BY MR. WEBER:
Q. Would you be interested, professor, in reviewing
the data in a 1997
publication on the effect of advertising bans in various societies
by an
author who was reliable enough to be cited three times in the Surgeon
General's report that you were the senior scientific editor of?
MS. WALBURN: Objection, form.
THE COURT: You may answer.
A. I would go back to the Surgeon General's report
and I would see how
we used him. I never heard of this guy, John Calfee, to be completely
honest
with you. He's not, you know, known in -- in my particular field. And
since
I haven't been interested in the area of advertising bans because I
haven't
been an advocate of advertising bans, you know, I'm -- I'm not sure
this is
what I would take a look at. First of all, the author is unknown; second
of
all, I've never heard of the publisher; third of all, it hasn't been
peer
reviewed. So I haven't seen anything that's -- that would direct me
to this
book, and it's not on a topic that is directly relevant to my interest
in
cigarette advertising and promotions and its effect on young people.
*11 Q. Well, the author isn't unknown, at least
he wasn't unknown to
those people -- those experts who wrote the chapter on advertising
in the
'94 report; correct?
A. You asked me. You asked me --
Q. Right.
A. -- what I would do, so I gave you my answer.
I never heard of this
person.
Q. Does the fact that those who were experts on
advertising chose to
rely on his research in the '94 report give him credit or reliability
in
your mind?
MS. WALBURN: Objection. And if this line is going
to be pursued, I ask
that the witness have a chance to look at the Surgeon General's report
as to
how the information was cited.
THE COURT: Sustained.
Q. Professor, I'd like to turn now to an exhibit
you discussed the other
day, Trial Exhibit -- Plaintiffs' Exhibit 12493.
A. Yes.
Q. And Trial Exhibit 12493 was the document that
related to that 1974
meeting of the R. J. Reynolds board of directors; correct?
A. Right.
Q. You spoke --
A. And it --
Q. I'm sorry.
A. I'm sorry, I interrupted you.
Q. And you spoke about that in your testimony on
Monday; correct?
A. Yes. This is on all the marketing plans for 1975
that were presented
to the board of directors at Hilton Head.
Q. Now this was about a year and a couple months
after the introduction
in the Minnesota Senate of the bill to allow high school students a
separate
smoking room; correct? Just to set the time.
A. Yes. This was at the -- right about that same
--
Well it was a year later than that time.
Q. And if you'd look at the first page where there
were those -- that
reference to 14 to 24 that you discussed, --
A. Yes.
Q. -- and I think you did read the language to the
jury on Monday, it
said that that group represents tomorrow's cigarette business; correct?
A. Yes. They clearly represent today and tomorrow
because you're
targeting 14- to 24-year-olds, so it's today's cigarette business and
tomorrow's cigarette business.
Q. Well what it said is tomorrow's; right? If we
just focus on that
language for a moment, is that what it says?
A. It represents today and tomorrow's cigarette
business, as of 1974.
Q. Does it say tomorrow's?
A. It includes tomorrow as --
But it also is today. This is on the plans for 1975,
and it reports in
here things that you've already done, that -- that RJR had already
done
toward this market, 14- to 24-year-olds; lots of activities, lots of
advertising, lots of promotions.
Q. Well I'm -- I'm going to go through the rest
of that document later,
but focusing on this paragraph now, it says, with reference to the
14-to-24
age group, that represents 21 percent of the population.
A. Uh-huh.
Q. That says they represent tomorrow's cigarette
business, and nowhere
in those two paragraphs does it say they represent today's cigarette
business; is that fair?
A. It says we will seek four key opportunity areas
to accomplish this,
if you -- it's up above on this page -- they are to increase our young
adult
franchise. And in 1960, this young adult market, the 14-to-24 age group,
the
number one key opportunity area was to increase the young adult franchise,
and the young adult was defined as 14 to 24, and that's what this document
talks about.
*12 Q. But here in these paragraphs it says tomorrow's
business; doesn't
it?
A. Well yes, because young people will get addicted
and they'll continue
to be smoking cigarettes for RJR.
Q. So the answer is yes, it does refer to tomorrow?
A. Yes, as well as today.
Q. But it doesn't use the word "today" there; does
it, professor?
A. It implies today.
Q. Now there are references on both pages one and
two, if you just look
through quickly, to the 14-to-24 age group; correct?
A. Right.
Q. Now if you turn to page three where it starts
with chart seven, do
you see that?
A. Yes, I do.
Q. This is where they talk about the strategy for
what they're going to
do; correct?
A. This is where they talk about their strategy
for their young adult
market, which they've defined as 14 to 24 right up front.
Q. Now with respect --
This is where they begin talking about their strategy;
correct?
A. Their strategies to appeal to 14- to 24-year-olds.
Q. Now would you find -- and take your time on this
if -- if you need
to, look through the remainder of this document from where they talk
about
their strategy, and I think you'll find references to 18 to 24 and
other age
groups, find a specific reference, if you would for me, please, professor,
anywhere in that document, once they start talking about strategy,
to people
under age.
A. Well in fact I don't think that's necessary because
the entire
document, it is up front and says increase our young adult franchise,
and
then that young adult franchise is 14 to 24. And if you remember, in
the
next document we presented after this, they said that the Meet the
Turk
campaign was another step towards meeting their objective of increasing
their market, and it explicitly said 14 to 24, and that was after this
Hilton Head presentation.
So it doesn't really matter if we take another age
group that's from
some data that -- that was gathered by RJR out of context. This entire
document, this document that talks about young adults define young
adults
consistently as 14 to 24. And it's not just this one document.
Q. This document defines young adults consistently
as 14 to 24?
A. Well they made references later to 18 to 34,
under 35, but you really
can't take that out of the context of what -- of what this person was
saying
as their plans for the young adult market for the next year. So there
are
references to the 18-to-24 age group or 18-to-34 age group or under-35
age
group, and under-35 age group would include down to 14. But the whole
document is talking about how are they going to get this young adult
market,
and the young adult market is right up front 14 to 24. It's followed
up with
-- with, oh, this may meet our objective of the Meet the Turk, 14 to
24.
Q. Is the answer to my question --
Well let me ask it again. Once they begin talking
about strategy at
chart seven, am I correct that there is no reference whatsoever in
that
document to anybody under the age 18, no explicit reference?
*13 MS. WALBURN: Objection, asked and answered.
THE COURT: It's been asked and answered.
Q. And isn't it also true that in this document
they use the term "young
adults" in other places to refer to 18 to 24? Isn't that true, professor?
A. Well as I said in my testimony, young adults
-- the young adult, the
terminology "young adult" was used in the late '70s and '80s, but it
almost
always meant that it included under-age teens even if it explicitly
said 18
to 24, and it was young adult. The strategies that went along with
it were
those that would be appealing to teen-agers.
Q. So you agree with me that the document does define
young adults in
some places as 18 to 24?
A. No, I think that's out of context. This document
--
I mean this is the front page, this is chart number
one. It says our
paramount marketing objective is to re-establish RJR's share of marketing
growth. RJR's share is going down and they're upset about that. So
what are
they going to do? Their number one opportunity area is to increase
our young
adult franchise, the young adult market, they said 14-to-24 age group.
That's the set-up for this whole talk. That is the set-up. They may
refer to
other age groups afterwards, but the whole set-up for what they're
going to
do is defined concretely in the first page.
Q. So you would agree with me, then, that once they
talk about the
strategy, there's no reference whatsoever to anybody under 18.
MS. WALBURN: Objection, asked and answered.
THE COURT: It's been asked and answered.
Q. Now let me move down that same page where it
says, "Research has
shown that among young adults, the Winston ads generate twice as much
recall...." Do you see that?
Professor?
A. Yes. I'm reading.
Q. I'm sorry.
A. Okay.
Q. Isn't it true that all of that research was done
on people 18 and
over?
A. I would have no idea from this document.
Q. You have no facts that the research was done
on anybody under 18;
correct?
A. Well at this particular time, 1974, you were
-- you, RJR, were right
in the middle of your National Family Opinion, Incorporated surveys,
which
annually, at least annually surveyed people down to the age of 14.
Remember,
we showed you how they broke it up into 14-15, 16-17, 18-20. They did
that
every single year in the 1970s. So you had -- RJR had data, they had
data on
14- to 17-year-olds.
Q. Okay. This refers to data where people were shown
advertisements and
tested for recall. Isn't that what it says?
A. Yes, that is what it said.
Q. And that's focus group research like we talked
about yesterday;
correct?
A. Yes, some --
Q. Where people are shown ads?
A. And I think that focus group research was in
the purview of your
advertising company; wasn't it?
Q. Well, maybe sometimes it was and maybe sometimes
it wasn't. My
question is this --
THE COURT: Counsel, you -- you needn't respond to
questions --
MR. WEBER: Okay.
THE COURT: -- asked by the witness. You ask the
questions, the witness
will answer your questions.
*14 MR. WEBER: Can I move to strike that last comment,
then, Your Honor?
THE COURT: Sustained. That will be stricken.
THE WITNESS: My apologies.
BY MR. WEBER:
Q. You have no evidence that -- strike that.
You're not aware that R. J. Reynolds ever did recall
research with
people under 17 -- or under 18; are you, professor?
MS. WALBURN: Objection, beyond the scope of -- of
discovery. Advertising
agency documents in their files were not produced.
THE COURT: Sustained.
Q. Based on any of the documents you received from
R. J. Reynolds, did
you see any evidence that anybody under 18 was ever shown advertisements
in
a recall test?
A. I saw evidence that 18-year-olds were shown advertisements.
And what
-- as I mentioned yesterday, if you show something to an 18-year-old,
it's
just like showing it to a 17- year-old, a 16-year-old and a 15-year-old.
Q. Well there's one difference, the 18-year-old
is 18; correct?
A. The difference is that the 18-year-old is an
18-year-old, but they're
still in high school and their friends are under-age, and RJR knows
that.
Q. Now did you receive --
Let me move this up just a little bit. You talked
about the new "Candid"
advertising campaign. Do you see that?
A. Yes.
Q. Did you receive any documents, advertisements
from the plaintiffs'
lawyers, showing you the "Candid" campaign?
A. I'm sure I did, but I can't remember --
I saw thousands of advertisements, so I'm not sure
-- I looked at
thousands. I would imagine they would -- there might be some from this
"Candid" advertising campaign, but sitting here today, I can't remember
those.
Q. Well wouldn't you have wanted, in this memorandum,
to look at that
"Candid" advertising campaign to see just what was going on? Wouldn't
that
have piqued your interest?
A. Well at --
When I looked at this document I was, frankly, quite
shocked. You had --
RJR had defined young adults as 14 to 24 years old, and you had these
whole
sets of strategies for 14- to 24-year- olds, including advertising
and
promotional campaigns. I remember asking to see the Meet the Turk
advertising campaign, which is also listed in the document, I was interested
in that, and I did see the Meet the Turk advertising campaign. So I
--
You know, I looked at boxes and boxes of advertisements,
and I can't put
my finger on the "Candid" -- the particular "Candid" campaign.
Q. Could you turn to tab 78, I believe, professor.
That's the Exhibit
No. 1409? 1409, Exhibit X1409.
A. Excuse me?
Q. It should be tab 78. Is that correct?
And can you identify that as a series of advertisements
from the Winston
"Candid" campaign?
A. Well it's labeled "Winston's 'Candid' Campaign
1974 to 1979" and has
advertisements on it.
Q. And you can't -- you --
You do believe these to be the -- some of the "Candid"
ads you reviewed?
A. I don't remember having seen them in my boxes,
but I will trust that
this is the Winston "Candid" -- part of the Winston "Candid" campaign
since
it was produced by RJR for this -- for this trial.
*15 MR. WEBER: Your Honor, I'd move the introduction
for demonstrative
purposes of X1409.
MS. WALBURN: Objection. I don't think that proper
foundation has been
laid. This is a demonstrative exhibit prepared by defense counsel.
THE COURT: It's -- I mean you're going to have to
have her agree to
what's there before you have her use this as a demonstrative exhibit,
or
else you can wait until your witness introduces it. That's the way
demonstrative exhibits work, counsel.
MR. WEBER: She did say, Your Honor, that she would
trust this is the
Winston "Candid" -- part of the Winston "Candid" campaign since it
was
produced by RJR.
THE COURT: That doesn't --
MR. WEBER: I need a little more?
THE COURT: That doesn't qualify under the Rules
of Evidence.
MR. WEBER: Can I move it in, then -- I move it in
--
I move X1409 in as a demonstrative under Rule 104(b),
conditional
relevance that we can connect this up later. There will be evidence
that
these advertisements are in fact what we say they are.
THE COURT: All right. I'll allow it under that rule,
subject to motion
to strike.
BY MR. WEBER:
Q. Now, these are --
Taking a look at these examples of the Winston "Candid"
campaign, do
these ads strike you as an expert in the field as having particular
appeal
to people under the age of 18?
A. I think perhaps half of them do, because the
models in them are
younger- looking people, and this is the 1970s, it was the beginning
of --
of the time of -- of a lot of anti-smoking activity, and that was affecting
youth smoking rates, that was the time of a lot of decline in youth
smoking,
so I -- I think that we could think --
For example, the man in the middle top, a young-looking
man, you know,
might be a role model for -- for young people.
Q. Well --
A. The young-looking woman. And, you know, I'm --
"If I'm going to
smoke, I'm going to do it right." You know, those were slogans during
that
-- that period of time. And, you know, I think that -- you know, you
need to
also think of this within the context of that entire document in which
at
the Hilton Head presentation they were talking about multiple brands
and
multiple strategies. This is one. And it may -- this is only a sampling
of
the ads that came out during that -- that period. This is six ads.
You may
have selected the ones with the oldest people on them. You know, I
don't --
I can't attest to how valid this is as a representation
of the "Candid"
campaign. I can attest to the fact that in the Hilton Head presentation,
that the major thrust of what RJR wanted to do, the number one thing
they
wanted to do was attract the 14- to 24- year-old age group.
Q. So if we focus on that document, the Hilton Head
presentation once it
begins with strategy and talks about what it's going to do, and we
look at
the "Candid" campaign, the fact of the matter is that these ads don't
have
any particular appeal to people under age; isn't that right, professor?
*16 MS. WALBURN: Objection, asked and answered.
THE COURT: You can answer it again if you want.
A. I didn't say that at all. You are completely
misrepresenting what I
said. I said this might have appeal to people under 18, it might fit
the
times of the '70s, and these in fact might be misrepresentations of
the
"Candid" campaign. And I don't know that, so I think you completely
misrepresented what I said.
Q. I mean it should -- well it -- I'll strike that.
THE COURT: Why don't we take a short recess at this
time.
THE CLERK: Court stands in recess.
(Recess taken.)
THE CLERK: All rise. Court is again in session.
(Jury enters the courtroom.)
THE CLERK: Please be seated.
THE COURT: Counsel.
MR. WEBER: Thank you, Your Honor.
BY MR. WEBER:
Q. Professor, did you have a chance over the break
-- I'm sorry. Are you
--
A. I think I'm wired.
Q. Okay. Did you have a chance over the break to
look at a few of the
other advertisements in that booklet?
A. I skimmed through the book, but I didn't study
anything.
Q. Would you turn to tab 77, professor, which is
Exhibit X1356.
A. Yes.
Q. That was one you were already turned to; right?
A. No, it wasn't.
Q. Okay. And are those Meet the Turk ads that you
reviewed?
A. I looked at this document. It was one of the
documents in the three
boxes that you -- that the tobacco industry provided last week.
Q. Didn't you say prior to our break that you had
seen the Meet the Turk
ads as part of the review in the work you did here --
A. No.
Q. -- in this matter?
A. I said I had asked for -- for them, and I believe
I saw a few, but I
did not see the entire Meet the Turk campaign.
Q. You don't know whether it was one of those campaigns
that had just
two or three or four ads, or whether it was a campaign that had a lot
of
ads?
A. No, I don't.
Q. You know it was a very short-running campaign,
I think as you said on
Monday; correct?
A. I don't believe I said that on Monday.
Q. So before you came to give your testimony, you
had seen some of the
Meet the Turk ads; correct?
A. I had seen briefly this page, and I may have
seen Meet the Turk ads
in my thousands of ads that I looked at.
Q. I'm sorry because my question was unclear, and
I just realized it
from your answer. In the course of the work you did for the state of
Minnesota and Blue Cross prior to the time that exhibits were exchanged
in
connection with testimony, in the course of the work you did, you asked
for
and received copies of Meet the Turk ads; am I correct?
A. I received --
I asked for Meet the Turk ads at some point. I also
independently was --
had received boxes of ads, and I believe in those might have been Meet
the
Turk ads, but at this point sitting here I can't remember whether I
actually
saw Meet the Turk ads prior to seeing this document.
Q. You -- you do remember asking for them though.
A. I remember mentioning, yes, that.
*17 Q. Now you didn't show the jury during your
direct testimony any --
any Meet the Turk ads; did you, professor?
A. No, I -- I didn't. That wasn't necessary as far
as I -- I thought at
that point.
Q. And the reason you didn't show those ads is because
it's obvious they
had no particular youth appeal whatsoever; isn't that true?
MS. WALBURN: Objection to the form, argumentative.
THE COURT: You may answer.
A. No, that isn't the reason. You know, it says
explicitly in the
document that our successfully piloted, I think -- I'm -- I'm abstracting
--
Meet the Turk campaign which will take us one step further to meeting
our
goal of creating advertisements for the young adult 14 to 24, so that
was
one document that -- that I -- I reviewed during this time. And I --
I
remember at some point that the Meet the Turk campaign was withdrawn
because
of complaints about it. Then -- and that's -- I didn't bring that up
in
testimony either. But the point of that was -- of that, bringing that
up,
was that RJR followed up what they said at the board of directors meeting
with actual testing of a campaign, and it said explicitly that they
were
testing that campaign to meet their number one objective, which was
to
target 14- to 24-year-olds, and it said Meet the Turk.
Q. Could you turn back to Exhibit 12493, and that's
--
I'm sorry. Bear with me just a moment, professor,
I've lost the -- the
tab number on that. Oh, I'm -- I'm sorry, that was in the plaintiffs'
binder.
Do you have it?
A. 12493?
Q. Yes.
A. Yes.
Q. And could you go to the Bates numbered page 1316
-- excuse me, 1315.
A. Yes.
Q. Okay. And that's discussing Meet the Turk there;
correct? Do you see
that?
A. Yes.
Well wait a second.
Q. Do you see the bullet points in the middle of
the page, Bates 1315?
A. Yes, I see that.
Q. And where they reference Meet the Turk?
A. Yes.
Q. And right above there they talk about the 18-to-24
male age group?
A. Yes. That was referring to Camel Filter advertising,
and it was
talking just about share penetration, it wasn't talking about the main
goal
of this entire speech, which was to increase the -- to attract the
14-to-24
age group. So this is presenting some data on 18 to 24, but it
doesn't say
18 to 24 is our target group.
Q. What --
The Meet the Turk campaign -- you just referenced
Camel Filter. Meet the
Turk was a Camel Filter campaign; correct?
A. Yes.
Q. Could you turn now to tab 77.
MS. WALBURN: Can we have the exhibit number?
MR. WEBER: Yes, I'm sorry. X1356.
Q. Do you have that, professor?
A. Yes, I do.
Q. And do you recognize that as a series of Meet
the Turk ads?
A. I recognize it as a sample of Meet the Turk ads
that the tobacco
industry put on this piece of paper.
Q. Now you said that campaign only ran a short period
of time. Could you
look at the screen for me rather than go back in the book -- if you
want to
go to the book, absolutely do it -- and you note that there were some
problems with whether the Meet the Turk campaign could really be used
because there was a Greek -- Grecian/Turk war going on?
*18 A. That's what it says.
MR. WEBER: Now, Your Honor, I'd move under 104 at
this time to introduce
these Meet the Turk ads in X1356 for demonstrative purposes.
MS. WALBURN: No objection provided that they're
subject to later proof.
THE COURT: Okay. Is this complete? I mean are these
just selected ads,
or is this a --
Are these all the ads?
MR. WEBER: This, I believe, is all the Camel Filter
ads for Meet the
Turk.
THE COURT: Okay. They will be received on that basis.
MR. WEBER: But we will tie that up with evidence
later, obviously, under
104, Your Honor.
BY MR. WEBER:
Q. Now -- it didn't work on the scanner? Okay, forget
it. Oh, that's --
okay.
Now taking a look at this series of Meet the Turk
ads, professor, is
there anything about Meet the Turk that strikes you as not appealing
to
adults but particularly appealing to youth?
A. I find these would be particularly appealing
to the 14- to-24 age
group, and I'd like to just point out a few things. One is down here
-- well
actually this -- this young man is very attractive for this period
of time,
1974-'75. You remember people kind of wore long hair there, and so
he's --
he's an attractive, slightly older person who would fit very nicely
as a
peer leader.
I think you can see in this ad that he's surrounded
by his peers, so
he's a popular person. I think that would be quite appealing to the
-- the
whole range of 14 to 24. For the 14-year- old, they see that being
an adult
or being mature, having fun with your friends, includes smoking cigarettes.
We have down here the -- the Turk on a motorcycle.
That certainly would
be appealing to young males. Leaning out of the car is an attractive
female,
so if you smoke cigarettes, you might be more appealing to the opposite
sex.
So there is a number of themes in Meet the Turk that would be appealing
to
an adolescent and potentially a young adult, but certainly an under-age
teen
would find this young man attractive.
Q. Now the question I'd asked was whether there
was anything in this ad
that was particularly appealing to youth as opposed to people 18 and
over.
Now are all --
Is everything you just said particularly appealing
to youth as opposed
to those 18 and over?
A. Well as I mentioned, this is -- I was referring
to the 14-to-24 age
group, which was what this document is all about, which is how do you
appeal
to the 14-to-24 age group. So this would be appealing to -- to a slightly
older, maybe 18 to 20, as well as under-age. You know, after that age,
I
don't believe that they -- that older people would find this particularly
attractive. But that's not --
My area isn't adult development, my area is adolescent
development, so
I'm commenting on that.
Q. So you're not speaking at all, as you sit here,
with respect to any
of these ads as to the degree of adult appeal they might have; is that
right?
A. Well I can speak to whether they are appealing
to the developmental
tasks we talked about, and if they do appeal to those, then they're
going to
be very potent, particularly for under-age teens, because images of
being
sexually attractive or being independent or being physically attractive,
those are most potent during the stage of adolescence. So the advertisement
is going to be most potent for adolescents, and that's backed up with
the
data that suggests that advertising campaigns are three times more
effective
with under-age teens than with adults.
*19 Q. They didn't test Meet the Turk and find it
three times more
appealing to under-age teens; did they, in that study?
A. They looked at data from 1979 on forward, and
-- and they did look at
a -- a very long period of time.
Q. Now attractive people in ads appeal to adults,
too; don't they,
professor?
A. I can't really respond to that.
Q. And there's lots of people 18 and over, indeed
the vast majority of
the motorcycle market is 18 and over; isn't it?
A. The --
Q. Do you know that?
A. First of all let's -- let's clarify that. Advertising
is not supposed
to be directed at anyone -- at anyone under age 21. That is what the
tobacco
industry agreed on in 1964. So let's -- let's look -- agree to that.
You
have to be able to put yourself in an adolescent mindset, and so looking
ahead to motorcycling at -- you get your license -- your permit at
15 and a
half, 16, this is extremely appealing to that particular age group.
Q. My question was: The vast --
Isn't the vast majority of the motorcycle market
people 18 and over? Do
you know the answer to that?
A. I'm not sure what you mean by "motorcycle market."
You mean --
Q. People who buy them and use them. Vast majority
18 and over.
A. But that doesn't really mean whether they're
going to be -- that's
going to be more appealing in an advertisement. What's going to be
most
appealing in an advertisement is whether it meets the developmental
tasks,
and it doesn't meet the developmental tasks of adulthood, necessarily,
to
have a motorcycle in there.
For young teens and young teen males, motorcycling,
it's one of --
motorcycling is one of -- or those motorcycle magazines are among their
favorite magazines.
Q. You don't have any data that says motorcycle
magazines are favorite
magazines of teens; do you, professor?
A. There is an article that just came out three
weeks ago in the Journal
of the American Medical Association that actually ranks the -- which
--
which magazines teens are most like -- which have the highest percentage,
and I -- I remember, and I'd have to look at that document to be sure,
but I
remember that motorcycling and those kinds of hot-rodding were among
the
ones that had the highest percentage of young readers.
Q. Isn't it true that the motorcycle magazines all
have primarily
over-21 readership, according to magazine industry demographic statistics?
Do you know that?
A. I believe they have a majority, but what this
article talked about
was that if you got to even -- if you got to 35 percent of your readership
being under age, if 35 percent of your readership was under age, there
was a
90 percent probability that it was -- that they would be -- there would
be
advertising for cigarette brands that were primarily cigarettes smoked
by
youth.
Q. Now --
A. So it's a smaller -- it takes --
It's a smaller percentage that looks like it would
have an impact.
Q. And let me go back to my question now. Would
you agree that the vast
majority of people who buy motorcycles and use them are 18 and over?
*20 A. I would agree with that, but I'd also state
that teens are
interested -- teen boys in particular talk about motorcycles, and they're
interested in motorcycles.
Q. And you mentioned there was an attractive woman
in one of these ads;
right?
A. I thought she was attractive.
Q. And that's nothing that people 18 and over aren't
interested in; is
it?
A. When you're an adolescent and you're going through
the process of
learning to date and looking for a partner, you are obsessed with the
idea.
Am I attractive? What is attractive? Will I find a partner? There's
no other
time in life when you are more obsessed with that idea and what is
or isn't
attractive.
Q. My question was: People 18 and over are interested
in seeing ads for
adult products that have attractive members of the opposite sex in
them;
right?
A. They may or may not be. That's not my area of
expertise. And I would
imagine that the -- since this area of attractiveness, this is a time
in
life when it is most potent, that that's going to have more influence
at
that point.
Q. So you don't know whether or not in ads for adult
products, marketers
use attractive men and attractive women? You don't know that?
A. They use them at some point. I'm sure they use
attractive men and
attractive women, but -- you know, in cigarette advertisements they
use
attractive men and attractive women that are young-looking and appeal
to
under- age youth.
Q. Don't ads for adult products use attractive,
young- looking people to
try to get the attention of other adults? Or -- or is that an area
you --
you just don't know about, professor?
A. Well what the adult market, the -- you know,
the --
It doesn't make much sense. With the adult market
you have a very small
amount of people who switch from brand to brand. By the time they're
an
adult you've already attracted the person to a -- to a particular brand,
so
you are really interested in switching, and it's a very small percentage
of
-- of smokers who switch outside of -- of a brand, and so it seems
to me
that it's -- that these attractive people, particularly if they're
attractive to young people, that it would be most potent and -- and
really
more appropriate for younger -- for a younger audience.
Q. Now do you know these ads were tested on people
18 and over?
A. I know that they -- that -- all I know is --
not all I know, but what
I know is that these ads were successfully tested to meet the objective
of
increasing the young adult franchise and that they explicitly linked
Meet
the Turk with 14- to 24-year-olds.
Q. And when they talked about those ads at that
board presentation, what
they talked about was young adult males 18 to 24, and they talked about
the
new Meet the Turk campaign; correct?
MS. WALBURN: I'm going to object to the markings
and representations by
counsel since that's referencing two different parts of that document.
THE COURT: Well you can answer the question.
A. All three of those points are within the context
of an entire
document, so you keep picking out key little points of the document,
and
there's nowhere in this document other than at the very beginning when
they
define young adult males -- or young adult people as 14 to 24, so yes,
you
might have had data on share penetration among 18- to 24-year-olds
that you
reported on here, and your later document, Meet the Turk, was referring
to
14- to 24- year-olds, and this entire document refers to 14- to
24-year-olds, so this -- you're -- you know, that's just taken out
of
context.
*21 Q. Well the entire document, you'd agree, though,
once they begin
discussing strategy in chart seven about what they're going to do,
there's
no reference whatsoever to any age under 18; isn't that right?
MS. WALBURN: Objection, asked and answered.
THE COURT: Sustained.
MR. WEBER: I'll withdraw it. I'll withdraw it, Your
Honor.
BY MR. WEBER:
Q. How do you know that these themes about attractive
people,
independent people, attractive and independent people, men and women,
how do
you know these things aren't potent with adults too? Have you ever
studied
those themes among adults?
A. You know, by the time you reach adulthood, part
of a process of
adolescence is to get to a place where you have a sense of independence,
of
identity, of a sense of attractiveness. You generally have a partner.
Those
themes in general would not be -- would not be as potent.
In my field, adolescent development, those themes
are of key importance,
and part of the process of adolescence is to come to grips with those,
to by
the time you're 21 have a -- a sense of those -- have completed those
developmental tasks, so the assumption is that those are not as --
as potent
in adulthood.
Q. Now with respect to the question I just asked
you about whether
themes of independence and attractiveness, things like that, are potent
for
adults, your statement that they're not as potent is your assumption;
correct?
A. It is my opinion and my belief based on the last
30 years I've spent
with adolescents.
Q. But you did say the assumption just a moment
ago; didn't you,
professor?
A. My belief based on 30 years of experience is
that those are not as
potent.
Q. Didn't you just say it was an assumption just
a moment ago,
professor?
MS. WALBURN: Objection, asked and answered.
THE COURT: You may answer that.
A. My belief based on 30 years of working with adolescents
and
adolescent development is that it's not as potent with adults.
Q. Didn't you just say, professor, that it was an
assumption?
A. My belief based on 30 years of working with adolescents
is that it's
not as potent with adults.
MR. WEBER: Your Honor, may I ask that the witness
be instructed to
answer the question?
THE COURT: Well, I think the point's made.
MR. WEBER: Okay.
BY MR. WEBER:
Q. Now you'll --
You also mentioned a moment ago, professor, the
age range in which --
you know, you defined adolescence, and I think adolescence, as you
said on
Monday and then just referenced a moment ago, goes up to 21 in your
definition?
A. Up -- up to 21, from about age 10-11 to 20, and
20 up to -- you know,
20 -- 20.
Q. To 21, not through 21 if I'm hearing you right.
A. You know, there is not a magical -- you know,
a -- a complete cutoff.
It's about the second decade of life, and so -- it's about the second
decade
of life.
Q. Now you confused me, because I don't know whether
that ends at 20 or
goes up --
A. Well --
Q. It ends at -- it ends at 21.
*22 A. The developmental tasks that I talked about,
for some people they
may have completed them at age 19 and others may not complete them
until age
22 or so forth.
Q. Indeed, there are many people in society who
don't complete those
developmental tasks till 30s, 40s, 50s; right? They're all working
on them.
A. There is no other period of time when those developmental
tasks drive
that -- drive your behavior as really during early and middle adolescence.
That is the driving time. So yes, there are people in their 20s and
30s
still worried about independence and am I attractive, but not with
that same
emotion, that same, you know, obsession as you find with young and
middle
adolescence.
Q. Aren't the best-seller lists for non-fiction
over the past 10 years
traditionally topped by self-help books for adults to deal with issues
like
intimacy, independence and autonomy?
MS. WALBURN: Objection, relevance, and outside the
scope of direct.
THE COURT: You may answer if you know.
A. I don't really know. All I know is that Men are
from Mars and Women
are from something -- Venus or Jupiter or --
Q. Somewhere.
A. -- something. That's been on the best-seller
list for a while. So no,
I really can't answer your question. There certainly are developmental
tasks
in adulthood, but that is not my area of expertise.
Q. And you haven't studied that with respect to
the adult population as
to the potent themes and issues for them; is that fair to say?
A. It's fair to say that the themes that I presented
on adolescence are
-- have been studied extensively by many adolescent scientists who
would
agree those -- that during adolescence, those themes are the most potent
themes during that age group and not at any other age group, not at
childhood and not in adulthood, for most people.
Q. Now based on your definition of adolescence,
you include -- include
as adolescents, plural, 18-year-olds, 19-year-olds and 20-year-olds;
correct?
A. Yes. Those are late adolescents, or -- yeah,
late adolescents, older
adolescents.
Q. And all of these adolescents are people that
the state of Minnesota
has decided can buy cigarettes legally; correct?
A. Yes, they can buy cigarettes legally in Minnesota.
Q. Could you turn, professor, to Exhibit 12579.
It's one of the exhibits
you spoke about earlier and -- and that's already in evidence. Do you
have
that, professor?
A. Yes, I do.
Q. Now you said just a moment ago that switching
was very, very small.
Remember that, the amount of switching?
A. Yes, I did.
Q. Okay.
A. Although I -- I will say that I'm not a switching
expert.
Q. But that's --
But you believe switching is very, very small. That's
what you said;
correct?
A. Well I read in one of the documents that the
amount of switching is
small.
Q. Now would you turn to page three of that document.
A. Yes.
Q. And -- if I can get that up -- ask you if that
document says "Loyalty
rates from the 1983 SDS (i.e., the percentage of smokers who smoked
Marlboro
at age 18 and still do) show that Marlboro loses about 28 percent of
its
18-year- olds by age 20 and another 14 percent by age 24 -- a total
loss of
42 percent over the six years between 18 and 24." Do you see that?
*23 A. Yes. And -- and I see that at the very end
it says but Marlboro
gains eight-tenths of a point by becoming a first brand at age 18,
which
means that they chose their first brand at under age 18, not right
when they
turn 18, so it can afford the .3 switching loss and still come out
.5 points
ahead. So even if they do do switching during this time, 18 to 20 years
old,
by attracting under-age smokers they're still coming out ahead.
Q. So do you agree that from age 18 to 24, that
there is a substantial
amount, about 42 percent, of switching among Marlboro smokers?
A. I would say that in 1983, that that is what this
document says. As I
said, I'm not a switching expert and so I can't attest to what goes
on, you
know, throughout -- I don't know what it is right now.
Q. Professor, could you put that book aside for
a minute, and I want to
ask you questions about another matter in the '94 report, please.
A. Yes.
Q. Okay. And you remember yesterday we talked about
the preface with
Surgeon General Elders where the Surgeon General said there were two
main
effects of cigarette advertising, one was an over-perception issue,
and --
and we had some questions and answers about the over-perception issue
yesterday, you'll remember?
A. Yes, I do.
Q. And the other major effect she said was that
cigarette advertising
can affect self-image and -- and make it appear cool. Do you remember
that?
A. Yes.
Q. That was the second major effect of two cited
by the Surgeon General;
correct?
A. It was two in the preface. It really wasn't in
the major conclusions
to the Surgeon General's report. It -- but she -- she chose to emphasize.
Q. Okay. Could you turn to page 82 of this report.
Do you have that
chart?
A. Yes, I do.
Q. And I know this may be a little hard for the
ladies and gentlemen of
the jury, so I'll try to take it piece by piece with you, professor.
Now this is a chart in the Surgeon General's report
that comes about --
comes from the Monitoring the Future project, and that's one of those
University of Michigan projects we talked about the other day; correct?
A. Yes.
Q. And if you look up here, what they're doing is
trending high school
seniors' beliefs and attitudes about smoking and smokers. Do you see
that?
A. Yes, I do.
Q. And there is some data here in some categories
for '76, and then it
goes on to '81, '86 and '91; right?
A. Yes.
Q. And would you agree with me that the '81 data
set is the first data
set that is complete for all columns on this -- on this chart in the
Surgeon
General's report? Do you follow me?
A. It's the first time that the Monitoring the Future
didn't ask about
whether smoking is a dirty habit or that the harmful effects of cigarettes
have been exaggerated, so they didn't ask that question in 1976.
Q. Right. But -- and --
But from '81, '86 and '91, it appears they asked
the same set of
questions; correct?
A. Yes, that's right.
Q. Okay. Now let me start in '81, then, with respect
to the percentage
of people, high school seniors, who agree that smoking is a dirty habit.
Do
you see that?
*24 A. Uh-huh.
Q. And from --
In 1981 that was 65 percent?
A. Uh-huh.
Q. And in 1991 that was 71 percent; correct?
A. Uh-huh.
Q. So practically three-quarters of high school
seniors in 1991 thought
that smoking was a dirty habit; correct?
A. 71.6 percent.
Q. All right. Then let's go down to the next one,
and the question asked
there was how do you think your close friends feel or would feel about
your
smoking one or more packs of cigarettes a day, and the percentages
are the
percentage who disapprove; correct?
A. I -- I think I lost you.
Q. I'm sorry, professor.
A. Oh, okay. I --
Q. It's right under the smoking-is-a-dirty-habit
question.
A. Yes, I see what you're talking about. Okay.
Q. And that's the --
And what they listed were the percentage of peers
-- of close friends
who would disapprove of someone smoking one or more packs of cigarettes
a
day; correct?
A. That's right.
Q. So that's a disapproval number, and that disapproval
number was about
three-quarters in '81 and about three-quarters in '91; right?
A. Right.
Q. And that relates to a peer issue; doesn't it?
If we go back and talk
about some of the developmental tasks and issues that you talked about
earlier, how your friends -- how you perceive that your friends would
feel
about you if you did something relates to a peer issue; correct?
A. Yeah. The -- please remember, these are high
school seniors, so they
are 17 or 18 years old, and as I mentioned, the peak in peer conformity
is
eleven to 14 years old, and that -- remember that most of the beginning
smoking occurs in early and middle adolescence, that's when the sharp
increase comes, so by the time you're a high school senior, peer conformity
isn't the issue. That's not the main issue at that point.
So we're measuring a group of people who aren't
as concerned with peer
conformity. The peak of that is in the younger age group.
Q. But these are the attitudes that the '94 Surgeon
General report, of
which you were senior scientific editor, chose to put forth on over
two
pages of the report; correct?
A. But they do not reflect all of adolescents, they
reflect 18-year-olds
-- or 17- and 18-year-olds, so that you can't generalize from these
data to
all of -- all of adolescents.
If we remember, that the Monitoring the Future didn't
start surveying
eighth graders and 10th graders until the '90s, so we didn't have these
data
on younger adolescents which -- which may have been -- may have been
useful.
Q. But the choice to take up two pages of the report
on this was by the
scientific staff who put the report together; correct? It's two full
pages.
A. It's two --
Yes, it's two full pages. I believe the epidemiology
chapter is quite
long.
Q. Now they also asked people their opinions about
smokers; didn't they?
A. Yes, they asked that of high school seniors.
Q. Now --
And it says, "In my opinion, when a guy my age is
smoking a cigarette,
it makes him look," and then it gives percentages of agreement; correct?
*25 A. Uh-huh.
Q. The first one, makes him look like he's trying
to appear mature and
sophisticated; right?
A. Yes.
Q. And that's not a positive rating, that's someone
who's trying to
appear. And if you look, those numbers are around 60 percent in '81
and in
'91; correct?
A. Well I don't know if we can interpret how a 12th
grader, whether they
say that is negative or positive, that he's trying to appear mature
and
sophisticated. I -- you put the emphasis on "trying." I'm not sure
a 12th
grader reading this is -- I think they're assessing that that person
is
trying to appear mature and sophisticated.
Q. You don't think a 12th grader would recognize
the difference between
being asked whether someone is mature and sophisticated or trying to
appear
mature -- that's an "a" -- mature and sophisticated, you don't think
a 12th
grader understands the difference on that?
A. They probably do.
Q. Now if you go down to rugged, tough and independent,
--
A. Yes.
Q. -- those are themes that you mentioned; correct?
A. Yes. These are themes that come up all the time
when I'm doing the
particular -- I do, really, this exact exercise, but I do it with young
adolescents. So in my programs, and I'm talking about hundreds of classrooms
and I'm talking about classrooms in Minnesota, and I -- and I ask why
do
people your age start smoking, one of the responses is to appear mature,
independent, sophisticated and so forth. So those are reasons given
by young
people in rather large percentages, and those come up over and over
and over
again.
By the time they're a high school senior, as we
saw, at this point
they're smoking already and they're thinking about quitting.
Q. Now for rugged, tough and independent, and this
is whether when
somebody is smoking it makes him appear rugged, tough and independent,
the
Surgeon General's reported -- report states that under 10 percent of
the
students interviewed agreed with that; correct?
A. The Surgeon General said that among 12th graders,
that it -- it makes
him look rugged, tough, independent --
Well at that age, no, but it -- if you're in the
seventh grade, that's a
different story. And we don't have the data from seventh graders, so
you're
going to have to rely on my experience with thousands of children.
Q. Okay. My question was: Does the Surgeon General
report show that with
respect to the rugged, tough, independent category, less than 10 percent
of
the people in '81 and '91 agreed that it made someone look rugged,
tough or
independent to smoke? Is that what -- is it less than 10 percent in
both '81
and '91?
A. For high school seniors who are 17 or 18 years
old, as opposed to
young and middle adolescents where this is more powerful, we reported
that
in the Surgeon General's report, less than 10 percent for that older
age
group when this is not as relevant.
Q. And you'll remember, professor, that when we
started this I mentioned
right up here at the top how this reported on a trend in high school
seniors' beliefs. That's the whole title of the chart; isn't it?
*26 A. Yes, it is.
Q. Okay. So you can assume that the title of the
chart will apply to the
rest of the questions.
Now with respect to whether someone who is smoking
appears mature --
makes -- makes a person look mature or sophisticated, you've got around
a
five percent agreement with that in both '81 and '91; correct?
A. For a high school senior, they're not going to
think that a person
looks mature and sophisticated. When you're eleven, 12, 13, 14, that's
when
you're looking to how to accomplish your developmental tasks, that
is the
key time of the low self-image, greater peer conformity, and thinking
how am
I going to achieve a certain kind of identity. By age 18, that peer
conformity is back down, that's not a driving force, you have a pretty
-- a
much stronger sense of self. So, you know, for the most part at that
-- at
that point, young people at age 17, 18, they're already beginning to
think
about quitting smoking.
Q. Okay. My question, professor, was with respect
to whether someone
smoking appears mature, makes a person look mature or sophisticated,
you got
only -- you got only around a five percent agreement with that in both
'81
and '91; is that correct?
A. For high school seniors, where this isn't as
big an issue as for
younger adolescents, we had only five percent.
Q. Now that issue that we mentioned a moment ago
about the Surgeon
General saying that one of the effects of cigarette advertising was
making
smoking appear cool, they actually asked the question here about whether
smoking made somebody appear cool or calm or in control. Could you
read to
the jury what the 1981 figure was for the number of -- percentage of
people
who agreed that smoking made a guy appear cool, calm or in control,
the
percent?
A. Well in 1981, among high school seniors who are
17 or 18 years old,
and the majority of whom have already started smoking, only six percent
think that it's cool, calm -- the person would be cool, calm, in control
in
1981.
Q. And in 1991, professor, for the cool, calm or
in control number,
what's that percent?
A. For the high school seniors where being cool
isn't nearly as an
important issue as in early adolescence, where we don't have this --
these
data, unfortunately, cool, calm, in control, only 5.3 percent by the
time
they're that age.
Q. And professor, I wanted to blow that up just
a minute to a large size
for the ladies and gentlemen of the jury so we can see that these numbers
we're talking to here aren't double-digit numbers, they're a single
digit
with a decimal point; correct? Because it was kind of hard to -- to
look at
on the larger scale,, the ones we just went through; correct, 6.2 percent
and 5.3 percent?
A. Yes. All the ones we went through refer to primarily
older
adolescents.
Q. Now this --
There's a second page to this survey interview --
or survey information;
correct, and they did it about girls. Do you see it there?
A. Yes, I do.
Q. That last set of questions we talked about was
boys, and -- and this
one is now girls. Okay?
*27 A. Yes.
Q. Now --
And when they asked, if a girl is smoking, does
she look like she is
trying to appear mature and sophisticated, we had high numbers there
again;
correct, in the 64 percent range?
A. For these 12th graders, that's their -- their
perception of a female
smoker, that she's trying to -- that, you know, a little over 60 percent
are
trying to appear mature and sophisticated. When they're in younger
adolescence, they actually say that's the reason people their age start,
is
to look mature and sophisticated.
Q. Now then they ask whether, if a girl smokes,
it makes her look
independent and liberated. Do you see that?
A. Yes, I do.
Q. And in 1981 that was 11.2 percent, and in 1991
it was 9.6 percent;
correct?
A. Correct. And if we can remember from what we
talked about yesterday,
that those -- the advertisements that appealed to women being liberated
and
independent were effective only in the under 18 age group, only in
that age
group, and it was -- they were effective in the 17-year-old, 16-year-old,
15- year-old, 14-year- old, not in the 18-and-older age group. So that
is
the age group which clearly were -- where that was clearly an appeal
to them
in the late '60s.
Q. So the answer is correct, I did read those percentages
correctly?
A. I believe you read the percentages correctly,
and I wanted to clarify
that these are 17- and 18-year-olds where this would not be as relevant
as
for a younger adolescent.
Q. Now then they also ask about whether girls' smoking
appears mature
and sophisticated; correct?
A. Yes, they do.
Q. And those numbers were single-digit responses
as well, 6.9 percent
and 4.5 percent; correct?
A. Yes. Again, they were small percentages because
they're wanting to
appear mature, sophisticated. Remember, they think that they're in
the
center of a stage is everyone is looking at them. That's early adolescence,
that's 11 to 14. You're not -- we wouldn't expect it to show up at
this
point. In fact this must include young people who smoke, so they themselves
don't perceive of it as mature or sophisticated; at this point they're
thinking about quitting.
Q. But I did read those numbers correctly; didn't
I?
A. I believe you did, counsel.
Q. Now they also ask, again, whether a girl looks
cool, calm or in
control, and again we see percentages of 5.5 and 4.1; correct? Have
I read
those correctly?
A. Yes. And again I'll remind the jury that when
I asked seventh graders
why do people your age start smoking, being cool came up, I would say,
in
over 90 percent, 95 percent of the classrooms that I deal with with
seventh
graders. So being cool is clearly perceived by the younger adolescent
as a
reason, a function that young people begin to smoke.
Q. Now they asked a series of other questions of
these students; didn't
they? And one was "I prefer to date people who don't smoke," and then
there
was an agreement or disagreement. Do you see that?
A. Yes, I do.
Q. And that deals with one of the tasks you've been
speaking about,
which is the sexuality/intimacy task; correct?
*28 A. Ah --
Q. Dating?
A. Well the task was sexuality, that is -- and a
concern is will I
attract a partner? And -- and am I attractive? So those, you know --
This one is a preference for whether they want to
date smokers or non-
smokers.
Q. And what this shows is that in 1981, 66.5 percent
said they'd prefer
to date people who don't smoke, and in 1991 74 percent agreed with
that;
correct?
A. That's what the data say at this -- at that point.
Q. Now they also ask whether the students agreed
with the concept that
smokers know how to enjoy life more than non-smokers. You see that?
A. That's right.
Q. And in 1981 only two percent, 2.8 percent agreed
with that, and in
1991, 3.6.
A. Well that -- I think that at that point, seniors
-- that's a kind of
crazy question because, you know, they -- anyway, that -- the percent
they
--
They probably don't know whether a smoker or non-smoker
would enjoy life
more at that point.
Q. Then on the issue of strongly dislike being near
people who are
smoking, strongly dislike being near, in 1991 essentially close to
half
agreed with that concept, strong dislike about being near people who
are
smokers -- or who are smoking; right?
A. Yes. I think it's --
At that point they were concerned with secondhand
smoke.
Q. And then the other one I'll touch on now is do
you disapprove of
people over the age of 18 who smoke one or more packs of cigarettes
a day,
and from ' 81 to '91 that number has remained close to 75 percent,
in the
three-quarters range; correct?
A. Well it also looks like it peaked in '86, and
it actually went down
between '86 and '91. So something must have occurred between '86 and
'91 so
that there was more approval of people who smoke one or more packs
of
cigarettes per day. Also, the line above that you didn't read, but
people
who personally don't mind being around people who smoke, you know,
a third
don't mind being around -- around people who smoke, so -- you know,
even
with all of the information about the effects of secondhand smoke.
Q. What's the percentage in the adult population
that smokes?
A. I believe it's about 30 percent.
Q. Okay. So if we assume random distribution, about
30 percent of these
kids would have parents who smoke; right? Not -- not perfect. Ballpark.
A. No, probably less if both parents smoke.
Q. Well just one. About 30; wouldn't it?
A. I think it would be less than that.
Q. So it wouldn't be surprising that kids who have
one or more smoking
parents would say they don't be around -- mind being around people
who are
smoking if their parents are smokers because they probably don't mind
being
around their parents; right?
A. Well I -- that's not what I've heard. I mean
I know a lot of -- of
children in adolescence who don't want to be around their -- around
when
their parents are, for example, smoking in the car. They'll open up
the
windows, they'll, you know, do all kinds of things. I mean they like
-- they
obviously love their parents, but they are not necessarily attracted
to
their smoking. So I don't think those correlate very well.
*29 Q. Professor, now as you said yesterday -- well
let me back up a
second.
MR. WEBER: Your Honor, I don't know what you want
to do for lunch, but
I've got a few more minutes here before we break, or what's best for
you?
THE COURT: Go ahead.
MR. WEBER: Okay.
BY MR. WEBER:
Q. As we said yesterday -- or as you said yesterday,
the advertising and
promotional expenditures increased from 1981 to 1991; correct?
A. Yes, they did, and increased even more up through
at least the data
that we received, 1994.
Q. But they increased substantially from 1981 to
1991 over that 10-year
period, advertising and promotion; didn't they?
A. Yes. Advertising and promotion increased, and
the anti- smoking
activity greatly increased in the 1980s. I think you can all remember
Nancy
Reagan Just Say No campaign which included just saying no to smoking.
There
was a great deal of activity in the 1980s that also has to come into
play in
looking at that decade.
Q. Advertising and promotional expense increased
substantially from '81
to '91; did it not?
MS. WALBURN: Objection, asked and answered.
THE COURT: You may answer that.
A. Advertising and promotional expenses increased,
but that's not the
only thing going on during the 1980s. There was a great deal of anti-smoking
activities going on in the 1980s that might affect the data that we're
looking at right here.
Q. Now with that increase in advertising and promotion
from '81 to '91,
the percentage of students in this -- reported in this Surgeon General's
report who thought smoking was a dirty habit grew; correct?
A. Yes. That would indicate that the anti-smoking
efforts were in fact
working.
Q. The percentage who thought boys who smoked looked
rugged, tough or
independent upticked slightly; correct, from 8.6 to 9.8 percent?
A. I'm not sure that that's statistically significant.
Q. Okay. The percent who thought boys looked mature
or sophisticated by
smoking ticks down a little; correct?
A. I don't believe those are significant changes.
Q. And the percent who thought boys looked cool
when smoking, that went
down almost one full percentage point; correct?
A. Again, I'm not sure those differences are significant.
That's only
one percent.
Q. And over the same period of time for girls, their
opinions about a
girl, whether her smoking made her look independent and liberated,
that went
down from '81 to '91; correct?
A. That went down slightly. Again, in the context
of the 1980s, there
was increased advertising and promotion spending, but there was greatly
increased research and effort, and at the -- at the highest levels,
the
President's wife talking about saying no. So there was a lot of things
going
on in the 1980s that would affect these data.
Any -- any attempt to connect just advertising and
promotion to these
particular data as a kind of one-on-one relationship I -- I think is
a false
kind of comparison.
Q. And the percent who thought a girl who smoked
was mature and
sophisticated went down over that period; correct?
*30 A. It went down, and hopefully reflected the
efforts of the anti-
smoking campaign during that time.
Q. And the percent who thought a girl looked cool,
calm, or in control
went down; correct?
A. It went down slightly.
Q. And the percent who preferred to date people
who didn't smoke went
up; correct?
A. Yes. I think during that time we learned quite
a bit about the
harmful effects of secondhand smoke, and so that was -- that also played
into -- to this group of 17- and 18-year-olds, most of whom had already
started smoking if they were going to start smoking.
MR. WEBER: Your Honor, I can move to another topic
now or -- or we can
take a break, whatever you'd like.
THE COURT: Why don't we recess. We'll reconvene
at 2:00 o'clock.
THE CLERK: Court stands in recess, to reconvene
at 2:00 o'clock.
(Recess taken.)
THE CLERK: All rise. Court is again in session.
(Jury enters the courtroom.)
THE CLERK: Please be seated.
THE COURT: Members of the jury, I just want to give
you your periodic
reminder about not reading newspapers, magazines, watching TV or listening
to the radio, talking to your friends or family concerning this case.
Friday will be a document day again, and that will
be -- from the point
of view of the jurors, it will be from 9:00 o'clock to 3:00 in the
afternoon, and I believe that's going to take place in courtroom three.
Is
that correct, Michele?
THE CLERK: Yes, it is, Your Honor.
THE COURT: Courtroom three. That will be next door
for the jury. And at
3:00 o'clock those members of the jury that wish to stay and read their
notes or look at additional records, they can do that, but those that
wish
to leave at 3:00 may do so.
The attorneys will meet in this courtroom and we
will hear motions in
the morning, and hopefully that will allow those attorneys that choose
to to
go home early.
Counsel.
MR. WEBER: Thank you, Your Honor.
BY MR. WEBER:
Q. Professor, could you turn to tab 30 in the notebook.
MS. WALBURN: Could we have the exhibit number, please?
MR. WEBER: I'm sorry, Ms. Walburn, that is AT000561.
MR. WEBER: Your Honor, I'd move the admission of
AT000561. It's a
magazine article from Life Magazine, it's self- authenticating under
902(16), and it's an ancient document since it's dated November 21,
1960 and
comes in under 803(16).
MS. WALBURN: No objection.
THE COURT: The court will receive AT000561.
BY MR. WEBER:
Q. Now professor, do you see before you a -- actually
it was on two
sheets, but a cover from Life Magazine, November 21, 1960?
It's the first -- it should be the first two sheets
there.
A. Oh, yes, I see.
Q. It ended up being put in half because Life Magazine
was that large
size, do you remember?
A. Yes, I see that.
Q. And that's got a picture of the Kennedys, John
F. Kennedy and
Jacqueline Kennedy on the cover?
A. Yes, it does.
Q. And the date is November 21, 1960?
A. Yes.
Q. And that's 37 and a half years ago now?
A. Yes.
Q. Now if you could turn in to the sheet labeled
57, and that's the
beginning article about a TV series called the Flintstones; correct?
*2 A. Yes, it is.
Q. And does it say under where it says "Stone Age
Hero's Smash Hit,"
does it say, "TV's FIRST CARTOON FOR GROWNUPS STARS THE SUBURBAN
FLINTSTONES?"
A. It says "TV'S FIRST CARTOON FOR GROWNUPS STARS
THE SUBURBAN
FLINTSTONES," but it should be pointed out that the Flintstones was
during
the 1960s the number one favorite show or show watched most often by
children under 11 years old.
Q. So the answer is yes, it does say "TV's FIRST
CARTOON FOR GROWNUPS
STARS THE SUBURBAN FLINTSTONES?"
A. It says "TV'S FIRST CARTOON FOR GROWNUPS STARS
THE SUBURBAN
FLINTSTONES," but it was clearly one for the family and very popular
among
children.
Q. And indeed that article goes on to say it was
the only adult cartoon
series ever done expressly for television; does it not?
A. I didn't read it closely in that way. I did see
the information from
Advertising Age, which lists by age group, you know, what's the number
one,
two, and the Flintstones was number one for children under age eleven.
Q. Didn't you tell me yesterday that you didn't
find statistical
compilations in Advertising Age reliable? Don't you remember telling
me
that?
A. I think what I said was that I didn't use it
for -- for explaining
etiology, for explaining why kids smoked. I --
Advertising Age is used to give, you know, ratings.
I mean isn't that
what it -- it's for? So, you know, Advertising Age gives information
on who
is watching TV, and eleven and under, Flintstones was right there.
Q. So Advertising Age is good for some things but
not others; right?
A. Yes, that's right.
Q. Now --
A. And it is good for telling us that children were
-- liked the
Flintstones and watched them. As did The Beverly Hillbillies, The Beverly
Hillbillies was also among the top 10.
Q. Now if you look in the last line on the left-hand
column, do you --
would you agree with me that the article refers to the Flintstones
as the
only adult cartoon series ever done expressly for television? Would
you
agree that that's what it says in that last line on the left?
A. I'll agree with that, but it doesn't exclude
the fact that many, many
children watch this cartoon. For it to be number one for children,
many,
many children watch the Flintstones. In fact I watched the Flintstones
and I
was a child during that -- during the sixties.
Q. Now do you know who else sponsored the Flintstones
with R. J.
Reynolds?
A. No, I do not.
Q. Do you know that it was the Alka Seltzer Company?
MS. WALBURN: Objection to relevance and form of
the question.
THE COURT: As to the form of the question, sustained.
Q. Let me ask you this, professor: Would the fact
that the Alka Seltzer
Company was a co-sponsor of the Flintstones during the years that Reynolds
sponsored it tell you anything about whether the people who were buying
commercial time on it thought it was an adult audience or a junvenile
audience? Would that give you any information?
MS. WALBURN: Objection, form.
*3 THE COURT: Sustained.
Q. Now you referred to Advertising Age, that data
that you were talking
about.
A. Yes, I did.
Q. Do you have that document there?
A. I believe it was in our document book, but I
don't know the exact
document number.
Q. Well would --
Is that document 26072?
THE COURT: Counsel, I don't think that's a fair
question.
MR. WEBER: Okay.
THE COURT: Show her the document.
MR. WEBER: Could I approach, Your Honor?
THE COURT: Show her the document, please.
(Document handed to the
witness.)
BY MR. WEBER:
Q. Is Trial Exhibit 26072 the document to which
you were referring in
Advertising Age?
A. Yes, it is.
Q. And did you get that from the plaintiffs' lawyers
in this case?
A. Yes, I did.
Q. Okay. And that's what leads you to believe that
the Flintstones was
drawing the largest audience among what age group, 11 and under did
you say?
MS. WALBURN: I'm going to object to the form of
the question and the
implication. This document was produced by R. J. Reynolds in this
litigation.
THE COURT: Rephrase the question, counsel.
Q. And you concluded from that document that the
Flintstones was drawing
a large audience of 11 and under; is that correct?
A. You know, when I -- when I first saw the Flintstones
commercials I
was a child and I watched them. I liked the Flintstones. My friends
watched
the Flintstones. It makes common sense, it's a family show. I asked,
you
know, are there data on this, and these data were -- were produced.
So -- so
I was really relying on common sense. Anyone looking at Flintstones
could
see that it would be appealing to children. These data confirm that.
Q. You made a specific statement with respect to
that data, though, and
that it was the largest audience among what -- what was the age group?
I
don't have the document in front of me. Was it 11 and under you said?
A. You know, counsel, this is not the exact document
that I saw
previously. The one I saw previously was dated 1966 and this is 1965.
Because the Flintstones, I remember, was number one for the two- to
five-year-olds and six- to 11-year-olds, and in this one Flintstones
is down
to number four in the six- to 11-year-olds, so there's some mix-up
in the
data.
I think, either way, you can see that the Flintstones
was popular in the
' 60s among children.
Q. Now the data you were talking about from Advertising
Age, about the
popularity of the Flintstones, was 1966 data you remember?
A. Yes.
Q. And that was the data referred to. And the document
I just showed you
is reporting 1965 data; correct?
A. Yes, it is.
Q. And I'm sorry, professor, I -- I don't have that.
Could you read the
-- the exhibit number on that just for the record so we know to which
piece
of paper we're referring?
A. 26072.
Q. 26072. Now, and --
And that data was important with respect to the
way it reported the
breakdown of the demographics of the show between adult and junvenile;
correct?
*4 A. The -- the point was is that children eleven
and under watched
this show, and it might contribute to children thinking that that was
a part
of life, and it -- that that was a normal part of life. That was the
point
that I made about both the Flintstones and The Beverly Hillbillies.
Q. Now the exhibit in front of you from Life Magazine
announcing the
beginning of the first adult cartoon series, that was 1960; correct?
A. Yes.
Q. November 1960.
Do you know that R. J. Reynolds didn't advertise
on the Flintstones in
1966?
A. No, I'm not aware of that data.
Q. Do you know that R. J. Reynolds didn't advertise
on the Flintstones
in 1965?
A. No, I didn't -- I don't know that.
Q. Do you know that R. J. Reynolds didn't advertise
on the Flintstones
in 1964?
MS. WALBURN: Objection, assumes facts not in evidence.
MR. WEBER: This is cross-examination.
THE COURT: You may answer if you know.
A. Well we saw in the cartoon, which was a common-sense,
really,
appraisal, I think the data -- the data I used was just a confirmation
that
the Flintstones were -- were a popular show, and common sense, just
looking
at those cartoons and the way that the credits were mixed up with the
advertisement, I don't believe I overstated at all that a child under
age 11
seeing that would consider smoking part of the normal part of life,
and
that's what I was saying, and -- and that -- and that's what I was
saying.
Q. Okay. Could you answer my question? Do you know
that R. J. Reynolds
didn't advertise on the Flintstones in 1964?
A. No, I don't know that.
Q. Do you know whether people trained in advertising
and marketing and
demographics and television rely on data from two-, three-years different
periods to determine who was watching the show in a two-, three-year
different period? Does anybody trained in advertising or marketing
do that?
A. I don't know that, the answer to that. I would
imagine that they
would look from year to year and see who was watching the show.
Q. Do you know that R. J. Reynolds only advertised
on the Flintstones
for the first two years, the '60 to '61 season and the '61-'62 season,
and
then they stopped? Do you know that, professor?
MS. WALBURN: Objection, form of the question.
THE COURT: You may answer if you know.
A. I don't know that.
Q. And do you know when they were advertising on
the Flintstones, one of
the co-sponsors was Alka Seltzer?
MS. WALBURN: Objection to the form of the question.
THE COURT: Yes. That's been asked and answered,
counsel.
MR. WEBER: I'll withdraw it.
BY MR. WEBER:
Q. Now you mentioned The Beverly Hillbillies also;
didn't you,
professor?
A. Yes, I did.
Q. And I will do us all a favor by not resinging
that song, but let me
ask you one question about it.
THE COURT: What about the Flintstones, counsel?
(Laughter.)
MR. WEBER: Only if forced.
Q. Now you noted in the 1994 Surgeon General's report
that R. J.
Reynolds advertised on The Beverly Hillbillies and then eventually
pulled
its advertising when they received successive monthly data showing
a high
level of minors; correct?
*5 MS. WALBURN: Could we have a page cite, please?
MR. WEBER: I'm sorry.
A. Could you show me that?
Q. Yes. Page 170.
A. 170?
Q. Yes. Down in the lower left-hand column, could
you begin with, "For
example, R. J. Reynolds...," and read that through the end of the paragraph.
A. It says, "For example, R. J. Reynolds continued
to sponsor The
Beverly Hillbillies even though the audiences for two selected individual
shows exceeded the code requirement; a later interpretation by the
tobacco
industry held that the code would be applied to two successive months
of
audience analyses rather than to selected specific shows. Later that
year,
after monthly data showed high levels of minors, R. J. Reynolds ceased
sponsoring the show."
Q. Now professor, back in that period of the sixties,
do you remember
whether it was usual or unusual for sponsors of television shows to
have
their sponsorship announced as part of the closing credits? Do you
understand my question?
A. I believe so. And I -- I don't remember.
Q. You don't remember whether --
A. I remember the Flintstones because of the --
because the Winston tune
was so recognizable.
Q. But you don't remember the closing credits or
the introductory
credits for any show back in the '60s and the '50s where they used
to say,
"Milton Burle show brought to you by" or "The Ed Sullivan show brought
to
you by," you don't remember how that -- anything like that?
A. I don't really remember that.
Q. All you remember is that it happened with the
Flintstones.
A. I remember the Flintstones because I watched
the Flintstones.
Q. Now -- (coughing) excuse me.
You didn't show or read to the jury any document
from R. J. Reynolds,
did you, professor, that said that R. J. Reynolds believed that advertising
could cause people to -- could cause non- smokers to smoke?
A. I believe I saw many documents that talked about
starters or first
usual brands or people who were under-age teens.
Q. Did you see any document from R. J. -- strike
that.
Did you show to the jury any document from R. J.
Reynolds that said that
R. J. Reynolds thought that advertising could cause a non-smoker to
become a
smoker? You didn't, did you?
MS. WALBURN: Objection, asked and answered.
THE COURT: No, you may answer that.
A. I showed many