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This article is part of the Tobacco portal on Sourcewatch funded from 2006 - 2009 by the American Legacy Foundation.

The Australian Federation of Consumer Organisations (AFCO) Case was a landmark case in the Australian health activists prosecution of their war against the cigarette companies, and a very important case for the rest of the world. It forced the US tobacco industry (beginning in 1986) to take stock of many of their assumptions that only the legal system of the USA was important.

Essentially, the Tobacco Institute of Australia had taken out a half-page advertisement in some of the major Australian newspapers maintaining that, while second hand smoke might occasionally be an irritation to non-smokers, it was not potentially a health problem. This was part of what the tobacco industry came to call the "Accommodation" program - based on the claims that courtesy was the primary concern. Smokers shouldn't smoke in circumstances when their second-hand smoke might irritate non-smokers, and in return, non-smokers must extend to smokers the right to satisfy their 'habit' (the word addiction was never used).

The problem was that the AFCO considered some claims in the advertisement to be false, and they made an official complaint to the Federal Trade Practices Commission - urging them to prosecute. The Commission wouldn't prosecute, but requested that the TIA publish a corrective advertisement -- which the AFCO did not accept as being sufficiently corrective.

The AFCO then took action against the Trade Practices Commission and the Tobacco Institute of Australia, seeking an injunction. The case was heard in November 1989, the same month as Philip Morris mounted its major McGill University ETS Symposium which brought 200-odd recruited scientists and academics together in Canada for three days in what was an entirely closed and controlled conference -- used as a training ground for future 'witnesses" under the title of "ETS Consultants" (later vaguely called WhiteCoats)

This wasn't a coincidence -- following the AFCO problems in Australia, the tobacco industry held a hurried conclave of lawyers in London (called IEMC- (International ETS Management Committee) which concluded that the industry must focus on recruiting scientists and academics in each country, so that 'experts' could make claims of safety on the industry's behalf. The industry itself, then only had to claim that they agreed with expert opinion. AFCO type cases would then be impossible. This led:

  • to the development of ETS Consultants in many dozens of countries,
  • to the creation of pseudo-scientific associations like IAPAG, ARIA, IAI, EGIL, EMIES, ARTIST and the like
  • to the systematic program of recruiting 'WhiteCoats' who eventually numbered in their thousands.

Documents & Timeline

1986 Jul [Source: TIA document] The Tobacco Institute of Australia (TIA) took out a half-page advertisement in the Australian Financial Review, The Australian and The Sydney Morning Herald titled "A message from those who do... to those who don't". Shortly after its publication, the Australian Federation of Consumer Organisations ("AFCO") complained to the Trade Practices Commission ("TPC") about some aspects of the advertisement that AFCO considered were false or misleading. AFCO urged the TPC to instigate an immediate prosecution of the TIA. The TPC contacted the TIA with AFCO's complaints.

1986 Jul 1 In July 1986 the Tobacco Institute of Australia (TIA) took out a half-page advertisement in the Australian Financial Review, the Australian, the Sydney Morning Herald and several other newspapers in Australia concerning environmental tobacco smoke (ETS). The advertisement was titled:
A message from those who do..., to those who don't.

Shortly after its publication, the Australian Federation of Consumer Organisations Inc. (AFCO) complained to the Australian Trade Practices Commission (TPC) about some aspects of the advertisement that AFCO considered were false or misleading. [The key statement was "there is little evidence, and nothing which proves scientifically that cigarette smoking causes disease in nonsmokers"] AFCO urged the Australian TPC to instigate an immediate prosecution of the TIA.

Following correspondence between the TPC and the TIA a second advertisement was published by the TIA in January 1987. The wording of this second advertisement was agreed on by both the TIA and the TPC, and the TPC accepted publication of the corrective advertisement as satisfying the complaint it had received. Accordingly, the TPC decided not to instigate any proceedingss against the TIA.

Despite this, AFCO approached the TIA directly seeking an undertaking from it that it would not repeat certain statements contained in the first advertisement. The TIA declined to give such an undertaking to AFCO although it indicated that it had no plans to republish the advertisement.

Thereafter, AFCO filed an application on June ll, 1987 in the Federal Court of Australia alleging a breach of Section 52 of the Australian Trade Practices Act. AFCO sought an injunction to prevent TIA from repeating the statement in the first advertisement and also sought its court costs. [2]

1986 late The AFCO challenged an advertisement published by the TIA which claimed that ETS does not cause disease.

The advertisement appeared just prior to publication of an Australian government report on the alleged harmful effects of ETS. AFCO wants the court to rule that the advertisement was false; to order the TIA to run a corrective advertisement; and to prohibit it from making similar claims in the future. [3]

1987 Jan Following correspondence between the TPC and the TIA a second advertisement (Appendix B) was published by the TIA in January 1987. The wording of the second advertisement was agreed upon by both the TIA and the TPC. The TPC accepted publication of the corrective advertisement as satisfying the complaint it had received. The TPC decided not to instigate any proceedings against the TIA.

Despite the publication of the second advertisement which as stated above, was pursuant to the settlement reached between the TIA and the TPC, AFCO still considered that a misleading impression had been conveyed in the first advertisement which had not been remedied in the second advertisement. AFCO approached the TIA directly seeking an undertaking from the TIA that it would not repeat certain statements in the first advertisement. The TIA declined to give such an undertaking to AFCO whilst indicating that it had no plan to republish the advertisement.

AFCO then applied to the Federal Court of Australia alleging a breach of Section, 52 of the Trade Practices Act and seeking an injunction to prevent the TIA from repeating a statement contained in the first advertisement.

That statement was: 'There is little evidence and nothing which proves scientifically that cigarette smoke causes disease in non-smokers'. Section 52 of the Trade Practices Act makes it an offence for a corporation to "engage in conduct that is misleading or deceptive or is likely to mislead or deceive." AFCO argued that this particular statement was false and hence was "misleading and deceptive".

The TIA contended that it was not false. The TIA argued that the statement was simply an expression of opinion, which opinion was genuine in that it was truly held. TIA further argued that its expression of opinion had a sound basis in that there was support expressed for that opinion in the relevant science. TIA further argued that there is a fundamental duty on it not to misrepresent the state of its corporate mind to the public and pointed out that in the July advertisement TIA plainly alluded to the fact that others might hold opinions contrary to those expressed by the TIA in the advertisement. Source: TIA document

1987 Jun 11 AFCO filed an application on June 11, 1987 in the Federal Court of Australia alleging a breach of Section 52 of the Australian Trade Practices Act by the Tobacco Institute of Australia (its ad had claimed "there is little evidence and nothing which proves scientifically that cigarette smoking causes disease in nonsmoker. ]

AFCO sought an injunction to prevent TIA from repeating the statement in the first advertisement and also sought its court costs. TIA contended that the epidemiological studies have methodological flaws and that, in any avent, the studies, even when considered in conjunction with other factors, provide, at most, possible suggestions of an association between ETS and disease, and do not provide any evidence of causation. TIA argued that to establish causation, there also must be evidence from animal studies and an understanding of the disease mechanism, since these two elements were lacking, TIA urged that there is no scientific proof nor more than a little evidence that ETS causes any disease. [4]

See also Attorney Client Communications document [5]

1987 Jun 11 Steven Woodward (plaintiff) was the respondent at first instance, and the appellant on Appeal in proceedings instituted by Australian Federation of Consumer Organizations Inc in the Federal Court of Australia on 11 June 1987 being proceedings numbered 0253 of 1987 (the "Proeeedings").

1989 Aug /E [Just before McGill ETS Symposium] Public Smoking Programs of the Tobacco Institute. This is a long "Smoking Gun" paper -- giving highly confidential details of their activities, and leaving little doubt about the corruption of those involved. It lists these activities under a stacked series of headings [Highly compressed]:

  1. Consulting Scientist on ETS and Indoor Air Quality.
    1. Academic:
      The TI now has 14 academic scientists [working] on ETS [issues] -- all faculty members of prestigious universities and medical schools. Their mission is to influence the scientific community's view of ETS science.

      Four will give papers at the McGill University symposium; others are helping prepare submissions to the Californian Air Resources Board and another in defense of TI Australia over false advertising claims.
      [The McGill Uni ETS symposium was a very large, closed and expensive project used by Philip Morris as a training venue for its new 'WhiteCoats' (secret witnesses) and to produce an entirely loaded 'proceedings' which was hawked around the world as a textbook on passive smoking research.]
      Next year, the academics will help us respond to an EPA risk assessment on ETS [which labelled ETS as a Class A carcinogen];
      the Department of Transport [aircraft] cabin air-quality study [which led to a ban on smoking on domestic flights]; " and other adverse scientific studies on ETS."
    2. Scientific Witness Team:
      The TI now has 23 consulting scientists whose businesses are to market their scientific expertise.
      [These are the cash-for-support scientists who will put their name to any proposition, no matter how dubious, if paid enough.]
      Their principal mission is to
      1) testify before state and local legislative bodies on ETS and IAQ issues;
      2) send letters-to-the-editors of scientific journals, newspapers, etc.;
      3) attend and report on meetings of scientific organisations; and
      4) conducting monthly media tours (radio, TV, newspaper briefings/interviews).
      The team will have its annual conference in Washington after the McGill symposium in November." [It was a true conspiracy; they knew and supported each other. See IAPAG.]
  2. Additional Approaches to Carry the Industry's Views on ETS to the General Media.
    1. Media Responses:
    2. Foreign Scientists:

  3. Journalistic Integrity on ETS and Other Controversial Science and Health Matters.
    1. Educational Ourtreach:
    2. Criticise Science Reporting:

  4. Scientific Integrity on ETS and Other Controverial Science and Health Matters.
    1. Nature of Science:
    2. Expose the Anti-Tobacco 'Industry':
    3. Costly and Confusing Health Information:

  5. Focus Attention on the Need for Improved Ventilation Systems of More Efficient use of Existing Systems.
    1. ASHRAE 62-1989:
    2. Healthy Buildings International (HBI):
    3. Business Council on Indoor Air (BCIA):

  6. Indoor Air Quality and Organized Labor.
    1. Outreach to Organized Labor:
    2. National Energy Management Institute (NEMI)

  7. Workplace Assistance Program.
    1. Corporate Assistance:
    2. Legal issues:
    3. Smoker Assistance:
    4. Collective Bargaining:

  8. Smokers as Customers.


1989 Sep 10 Outlines the case 401097309 Disposition of Parrish See section on the AFCO decision.

1989 Sep 30 - planning HBI seminars suspended. Consultants selected by Whist 2501204997

1989 Nov Mr. Justice Morling of the Federal Court of Australia began hearing the case in November 1989. Much of the legal argument on both sides concerned the meaning of terms used in the advertisement such as "little" , "evidence" , 'scientific proof' and "disease". TIA argued that words such as "little 'evidence', " proves", 'scientifically" and "causes" are each expressions of conclusions which can only ever be matters of opinion.

The case also involved a consideration of the weight which should be given to the scientific studies concerning environmental tobacco smoke. Source: TIA document

1989 Nov AFCO case reached the Australian Federal Court in Sydney and then moved to London in June 1990

1989 Nov 21 The court case against Australian Federation of Consumer Organisations (AFCO) by the Tobacco Institute of Australia was run by Glenn Eggleton of Clayton Utz, before Justice Morley beginning with opening statments on 21 Nov 1989. For AFCO, Sir Richard Doll testified June 11-12 1990 from London, Also Professor Trichopoulos on June 15-16 and Professor Janerich June 16-20 and Professor Wald June 24-26. [7]

1990 Mar-Jul Those giving evidence for the TIA were all the old tobacco regulars:

The Justice's [Morling] decision of February 7, 1991 concluded that the statement was false and misleading as of July 1, 1986, [He stated] "there is more than a little evidence and indeed scientific proof that environmental tobacco smoke causes lung cancer, respiratory disease (limited to such disease in children under twelve months of age) and attacks of asthma in nonsmokers. [8]

1990 Appeal - good outline of AFCO case and the witnesses. [9]

1990 Apr 26 The TIA tried to attack AFCO saying that it had dissipated its assets.

Justice Morling heard evidence regarding TIA's motion for security of costs on 26-Apr-90. Mr. R. Brown, Director and Public Officer of AFCO, testified with regard to AFCO's financial situation and denied that AFCO had taken steps to dissipate its assets. Justice Morling therefore dismissed with costs TIA's motion. [10]

1990 May 17 Justice Morling issued his judgement, but ruled that the plaintiff may present rebuttal evidence of Drs Trichopoulos, Janerich and Wald

1990 Jun The AFCO court case had moved to London "so that the consumer group could more easily call international witnesses to testify. Witness for the tobacco industry was Dr Philip Wirorsch. They also quoted Varela [11]

The Morling decision was appealed - a fact often overlooked by the anti-smoking movement. On appeal, one of the judges of the Full Federal Court announced that Justice Morling "embarked upon the wrong enquiry". (Hill J page 62).

Regarding Morling's "scientific" conclusions, Justice Foster commented:

    "It may be observed that the evidence of these scientists clearly demonstrated that in the highest levels of science there was disagreement as to whether passive smoking could cause disease in non-smokers... It was not a disagreement which the learned primary Judge (ie Justice Morling) or this court could reasonably resolve."

The Full Court did not determine the scientific issues. The judgement was concerned with the misleading language unintentionally used by the TIA in an advertisement.

1990 Jun 3 Compare the scientist attacking the Envionmental Protection Agency ,
1989 Nov 19: [Wrong date on document] The Environmenal Protection Agency (EPA) was in the process of publicly asserting that second-hand smoke (ETS) was a known carcinogen (the Draft EPA Risk Assessment). This is a draft speech script prepared for a media briefing by Dr Don de Bethizy, senior toxicologist at RJ Reynolds.

They have lined up all the industry's favourite scientific touts who are being paid to attack the EPA itself and question ..."the scientific merit of two EPA draft documents -- the ETS risk assessment and the workplace smoking guide" [which he says] contain many major scientific shortcomings. The time we have today only permits us to scratch the surface.

[In fact they dug out the deepest slime in the pit. Every scientist mentioned here is a long-term tobacco industry science-for-sale entrepreneur or witness for hire.]

Today, you'll hear why ...
  • Gray Robertson, an internationally regarded expert on indoor air quality, believes the Workplace Smoking Guide is poorly conceived, with conclusions that are ill-considered.
    [Robertson was the owner of ACVA/HBI -- the most corrupt of all the indoor air testing company employed by the tobacco industry. He was one of the industry's main contract lobbyists.]
  • After Gray Robertson, you'll hear from Dr Phil Witorsch, pulmonary physician and a clinical professor of medicine at George Washington University Medical Center. He will detail the specific reasons he believes the EPA has drawn invalid from evidence concerning the relationship between ETS and respiratory diseases in children.
    [Witorsch spent most of his life as a tobacco consultant (and an organiser for them). He travelled around the world to provide witness services for the tobacco industry in court cases. He was a founding member of the notorious IAPAG (Indoor Air Pollution Advisory Group) which was a 'WhiteCoats' organisation run by tobacco lawyers Covington & Burling.]
  • Dr. John Wesley Clayton, professor emeritus of pharmacology and toxicology at the University of Arizona, and former president of the International Congress of Toxicologists, will discuss the available toxicological data on ETS. None of these data appears in the Risk Assessment. And -- more important -- none supports the contention that ETS is a human carcinogen.
    [Clayon had then been receiving CTR grants for 15 years, and in return, on his retirement, he had become a professional witness who worked extensively for the Tobacco Institute (and probably any other industry with the funds). He was handled by lawyers Shook Hardy & Bacon.]
  • Dr Maurice E LeVois, a highly experienced epidemiologist who has designed large studies for the US government will detail some important omissions in the Risk Assessment. As Dr LeVois will point out,the draft arbitrarily omits important epidemiological, dosimetric, medical and statistical evidence that conflicts with the conclusions reached by the EPA.
    [LeVois was, at various times, the partner of Maxwell Layard and also George Carlo -- both notorious science-for-sale entrepreneurs (Carlo also worked for the chemical, breast-implant, and cellphone industries). During the 1990s the group all worked almost full-time for two industries -- tobacco and dioxin/herbicides -- mainly through infiltrating organisations like Veterams Affairs and conducting fake studies for their funding industries.]
  • Dr. Richard L Tweedie, the dean of information and computing sciences at Bond University in Australia, will present the findings of his own analysis of the epidemiologic studies conducted on ETS. And he will discuss some major differences between his conclusions and those reached by the EPA.
        [Tweedie and his girlfriend (also a long-term tobacco tout) Kerry Mengerson were rewarded with an endowed chair at the University of Colorado]
  • Peter N. Lee, a British statistician whose work is frequently cited by the EPA in the Risk Assessment, will explain why the misclassification adjustment made by the EPA is mathematically incorrect.
    [Lee spent his life as a full-time contractor in statistics to the Tobacco Advisory Committee (TAC) of the UK. He was retained to try to find holes in any adverse scientific finding.]
  • Dr William J Butler, a biostatistician, will focus on the EPA's failure to identify or discuss several important confounding factors that could account for most -- if not all -- of the increased risk noted by the EPA.
    [Butler was a contract scientific lobbyist from the company Failure Anaiysis Inc. Butler and this company worked extensively for the tobacco industry: he was one of their regular witnesses used with State Assembly hearings. He also spoke at Philip Morris's closed McGill Uni. ETS symposium -- which only enrolled paid industry touts.]
  • Dr Joseph L Fleiss, the head of the division of biostatistics at the Columbia University School of Public Health, will discuss a number of considerations that make meta-analyis an invalid basis for drawing conclusions about ETS.
    [A regular Tobacco Institute consultant and speaker used at fake/closed conferences. (McGill Uni.)]
  • Dr. Paul Switzer, a professor of statistics at Stanford University, will focus on a number of statistical uncertainties, inconsistencies and biases that seriously undermine the scientific credibility of the Risk Assessment.
    [Another regular scientific witness who also played a key role in the fake McGill University ETS Symposou,]
  • Finally, Dr W Gary Flamm, the president of the International Society for Regulatory Toxicology and Pharmacology, will talk about serious violations of scientific objectivity contained within the .document.
    [The Society was a front for a group of science-for-sale toxicologist who worked for a range of industries with poisoning and polluting problems. Flamm also lectured at McGill.] [12]

  • 1990 Jun to mid 1991: In its defense against the Australian Federation of Consumer Organisations (AFCO) over the charge of misleading advertising, the Tobacco Institute of Australia (TIA) under Donna Staunton called eight expert witnesses -- six imported from the Shook Hardy & Bacon stable of witnesses in the US. They were :

    • Professor Richard Tweedie, a statistician who is presently Dean of Information and Computing Sciences at Bond University.
      [Tweedie and his girlfriend (also a long-term tobacco tout) Kerry Mengerson were rewarded with an endowed chair at the University of Colorado]
    • Professor Phillip Witorsch of Washington D.C. Professor Witorsch specialises in respiratory medicine. He is presently Clinical Professor of Medicine, Adjunct Professor of Physiology and Director, Section of Environmental Medicine and Toxicology, Division of Pulmonary Diseases and Allergy at the Department of Medicine at the George Washington University of Medicine and Health Sciences in Washington DC. Professor Witorsch is also Adjunct Professor of Pharmacology at Georgetown University Schools of Medicine and Dentistry.
      [He spent most of his time as a tobacco consultant, travelling around the world to provide witness services for the tobacco industry in court cases. Along with his brother Rafael, he was a founding member of the notorious IAPAG (Indoor Air Pollution Advisory Group) which was a 'WhiteCoats' organisation run by tobacco lawyers Covington & Burling.]
    • Dr. Sven Eric Torbjorn MaImfors of Enebyberg, Sweden. Dr. Malmfors is an independent consultant in toxicology and risk assessment. He holds a degree which is equivalent to a Bachelor of Medicine degree in Australia. Dr. Malmfors is an Assistant Professor of Toxicology at the Karolinska Institute in Stockholm.
      [Malmfors' primary business was Malmfors Consulting, a lobby firm in Sweden. He was also a WhiteCoat member of IAPAG and the related UK WhiteCoats organisation, ARIA (Associates for Research in Indoor Air). He founded and ran the Scandinavian version known as EGIL.]
    • Mr. George B Leslie of Bedfordshire, England. Mr. Leslie is an independent toxicologist and pharmacologist. He holds a Bachelor of Science degree in Physiology. As an independent consultant in toxicology he has lectured in the subject to students at, inter alia, the London University, the Royal Veterinary College, the School of Pharmacology, the Royal Post Graduate Medical School, the University of Leads, the University of Dijon and the University of Wales.
      [Leslie was the co-founder (with Professor Roger Perry) amd Frank Lunau of ARIA, and the administrator (with his wife) of a number of Philip Morris-funded front/laundry organisations. ARIA in the UK was used for laundering payments to British WhiteCoats and IAI (Indoor Air International) a Swiss-based, so-called 'scientific society', ran manipulated conferences. He also produced their journal and newsletter, both funded by the tobacco industry. With Roger Perry, he was also Philip Morris's main European recruiter of Asian WhiteCoats.]
    • Professor Gary L Huber of Tyler, Texas. Professor Huber specialises in respiratory medicine. Professor Huber is Professor of Medicine in the Department of Medicine at the University of Texas Health Centre at Tyler, Texas and in the Department of Medicine at the University of Texas Health Science Centre at Houston, Texas.
      [Huber probably took more money from the tobacco industry than any other medical researcher. He was forced out of Harvard University over his ethical standards and then needed an armed body guard (supplied by RJ Reynolds) at Kentucky University when his students rebelled. He was accused of fraud and forced to resign. While at Texas University (shortly after this) he became entangled in his lies during a court-case, and then turned whistleblower -- revealing everything about his secret life working for tobacco.]
    • Professor Emeritus John Wesley Clayton. Professor Clayton is Professor Emertus of Pharmacology and Toxicology at the University of Arizona in Tucson, Arizona. Until retirement in 1989 he held the position of Professor of Pharmacology and Toxicology, College of Pharmacy and Professor of Microbiology and Medical Immunology at the University of Arizona.
      [Clayon had then been receiving CTR grants for 15 years, and in return, on his retirement, he had become a professional witness who worked extensively for the Tobacco Institute (and probably any other industry with the funds). He was handled by lawyers Shook Hardy & Bacon.]
    • Dr. Maxwell W Layard. Dr. Layard is a partner in Layard Associates, a firm of consulting statisticians in California. He has been in that position since 1989. Prior to that time Dr. Layard was at various periods, an Assistant Professor of Mathematics at the University of California. Davis, a statistician employed by the National Cancer Institute, a Biostatistician at the U.S. Veterans Administration and a manager of Biostatistics and Epidemiology at Failure Analysis Associates in California.
      [He was a statistical consultant (Layard & Associates) who depended upon the tobacco industry for most of his income. His associates included Maurice LeVois, who was even more corrupt.]
    • Professor Bruce A Warren, Professor of Pathology at the University of New South Wales.
      [An egoistic Professor of Pathology with political aspirations.]

    [With the exception of Warren, the lone Australian, all of the above were well-known, well-paid scientific touts for the tobacco industry who had worked for many years with their US and UK tobacco industries. ]
    Each of the experts testified that the statement, the subject of the proceedings, was an accurate characterisation of the evidence concerning ETS. Source: TIA document See also tobacco industry time-table for witnesses. [13]

    1990 Jun 18 Peter Godby of BAT is leading an industry-wide team of lawyers led by Shook Hardy & Bacon over the Australian AFCO case: J Goold (RJR) Steve Parrish (PM), J Seddon (Rothmans), Andrew Foyle (Lovell White Durrant), and Don Hoel (SH&B) They want a meeting Wednesday 27th to review the case.

    The need for international consistency in statements and legal moves in the smoking and health arena will be discussed. Glen Eggleton of Clayton Utz will definitely be available and Barry O'Keefe [Australian barrister for tobacco industry] may be. The meeting will take plaee in London.

    1990 Dec 20 /E The actual hearing occupied 95 days of Court time during 1989 and 1990 including 9 days in London. The last submission was completed shortly before Christmas. Since that time Morling J. has been completing his written decision on the case. [Expected shortly after Jan 30 1991]

    1991 -92 John St Vincent Welch deposition: The AFCO decision was a lawsuit to enjoin the TIA from making public statements that there was no evidence that passive smoking caused disease. The case was in its final stages during my tenure. The TIA lost the lawsuit. The AFCO decision was the first of its kind, and I knew that the parents and affiliates of the member companies were greatly concerned about the potential impact of the AFCO case on the passive smoking issue in other parts of the globe and were paying very close attention to the matter.

    1991 Jan 29 Donna Staunton-Mayne couriers over to International Public Relations (IPR) a letter from Clayton Utz with some redrafted media plan material -- mainly to do with the AFCO case.

    1991 Feb The initial AFCO decision. The TIA then appealed the ruling. D

    During the appeal, Glenn Eggleton would frequently correspond with the TIA, the member companies, and their parents and affiliates regarding how possible outcomes should be addressed from a public relations standpoint.

    Clayton Utz wanted to ensure that, whenever a matter arose that would require a response from the TIA that the response would be consistent and be appropriate - in that the TIA wouldn't cause any legal or public relations problems. Q. Looking at the fax page, do you see that a Mr. C. Wall of Philip Morris International in New York, a Mr. D. Schechter of BATUS Inc. in Kentucky, a Mr. P. Clark of BATCo in London, and a Mr. Willis of Shook Hardy & Bacon in Kansas City are all listed as recipients of this fax? A. Yes. Q. Was it common for Glenn Eggleton and Clayton Utz to send out instructions on how to answer questions from the press on Australian matters to tobacco industry representatives in the United States and England? A. I am not aware nor recall all that Clayton Utz did in this regard. Nevertheless, the tobacco industry in the United States and elsewhere in the world were extremely concerned about the AFCO case and knew that it could have serious ramifications on their business across the globe. That was the reason the TIA had numerous visits from Shook, Hardy & Bacon. Q. How many times did lawyers from Shook Hardy & Bacon visit the TIA?

    A. I don't recall the exact number, but the visits were frequent - half a dozen or more times in a year. [Robert Northrip.]

    1991 Feb 6 PM email with long list of International Corporate Affairs staff around the world

    We have been alerted by PM Australia that the judge hearing the AFCO case will hand down his decision at 9:30 a.m., (Australian time) on Thursday, February 7. Thomas Ricke, Senior Vice President, Corporate Affairs, Kraft General Foods, is in Australia. He and a Burson-Marsteller representative are assisting PM Australia and the tobacco industry in preparing a media plan. (As you know, Ricke was one of the architects in the post-Cippollone press relations program) [14]

    1991 Feb 7 The decision by Justice Morling concluded that:

    • The tobacco companies engaged in conduct that was misleading or deceptive unter the Trade Practices Act. He based his decision on: '" There is more than a little evidence, and indeed scientific proof, that ETS causes lung-cancer" and respiratory diseases (including asthma) in nonsmokers
    • The 1986 statment was made in trade or commerce (and therefore actionable)
    • No corrective advertisement since so much time had elapsed.

    He reserved question of cost and listed a date for settlement between the two parties. [15]

    Hundreds of pages or arguments start about half-way though a 2000 page document [16]

    1991 Mar 25 Glenn Eggleton of Clayton Utz had advised the TIA that Justice Morlin (Federal Court) was likely to make his formal ruling during the week of March 25. He had already enjoined the TIA of making any statement similar to the complaint. Barry SJ O'Keefe was the barrister. At the last minute they are trying to get the judge to consider a just-published Wu-Williams study (published Dec 1990). Kerry Menglesson was also involved See Transcript of Proceedings

    1991 Apr 30 Shook Hardy & Bacon report on ETS Developments.

    On April 16, 1991, Justice Morling handed down his Final Orders, which restrain TIA from making certain statements in trade or commerce pertaining to whether ETS causes disease, lung cancer, respiratory disease in children, attacks of asthma, and otitis media in children. TIA is also ordered to pay AFCO's costs on the basis that AFCO will be completely indemnified by TIA for all reasonable costs. TIA is currently deciding whether to appeal this decision. The time for filing a Notice of Appeal expires on May 6, 1991.

    1992 Feb 28 Glenn Eggleton's (to John St V Welch at TIA) written guideline for answering expected questions from the press in response to possible outcomes of the AFCO case

    1992 May APPEAL: Win or Loose statements prepared by Staunton and Clayton Utz May 1992 700727132_7136.pdf

    1992 Jun AFCO appeal likely


    1992 Jul Donna Saunton-Mayne says Proctor was "a scientist on staff at C&B" Rupp asked him to liase with Gori and Max Layard + Paul Switzer re coming to Australia for AFCO appeal. 2023241376 P Witorsch and Layard are both icoming. She is objecting to C&B rep coming also: "especially given the fact that both gave evidence in the AFCO matter and both have had extensive contact with Clayton Utz staff. However, as you are aware, Covington & Burling are very protective of the experts developed by them and it may be we have no choice in the matter."

    1992 Aug 3 Donna Saunton-Mayne AFCO appeal. Win statement to be read by Reinier if successful 2504075726 1992 Dec outcome of appeal to Fed court: Dec 1992 APPELLATE COURT - DECISION IN AFCO V. TIA: 2045751109/1111

    • AFCO

    "following the AFCO judgement in Australia, a group of international industry lawyers and public affairs people met in London to consider the implications for the industry. This then became the IEMC (International ETS Management Committee) .. and the program was handled in such a way, thanks to C&B, that there was no direct association between the scientists and the tobacco industry. +++++++++++++++++++++++++++++++++++++++

    Perry project funded by EEC+++++++++++++++++++++

    0000 - 300515335

    1993 Apr 16 PM have filed against anti-smoking activist Steven Woodward over AFCO. AFCO filed Notice of Appeal to the High Court from the decision of the Full Federal Court seeking additionl costs 2045680521/0522 [17]

    1993 Sep 21 Susan Stuntz at the Tobacco Institute has heard about an Australian court ruling on ETS. [18]

    1995 Jan Australian Philip Morris "Industry Issues" Key Message Points. [215 pages] It deals with:

    The Full Federal Court's judgement in AFCO on March 10, 1993 clearly pointed out that it did not resolve the scientific, medical and health issues that have been raised concerning environmental tobacco smoke. It stated that the 'relationship between environmental tobacco smoke and disease should be left 'to scientists trained in that area'. In that way, the Full Court rejected Mr Justice Morling's conclusion to the contrary.

    Further, in our view, the AFCO judgement does not support smoking bans or restrictions in the workplace or public places Nor does it provide any legal basis, support or encouragement for lawsuits against employers, restaurateurs, hotel operators and so forth.

    Mr Justice Forster: It may be observed that the evidence of these scientists clearly demonstrated that in the highest levels of science there was disagreement as to whether passive smoking could cause disease in non-smokers.... It was not a disagreement that the learned primary judge [i.e. Mr Justice Morling] or this court could reasonably resolve.

    Mr Justice Hill: At the end of the day, the question of the relationship between environmental tobacco smoke and disease is a matter for scientists trained in the area, it is not a matter for a Court of Law... It should, accordingly, be borne in mind that the Court, in the present proceedings, is not deciding whether environmental tobacco smoke does in fact cause disease.Page 67 - 69

    2002 Jun 26: Part 2 of deposition of Steven Parrish (US vs Tobacco Industry)

    We wanted to make sure, (and again now I'm taking internally at Philip Morris) that we wanted to make sure that whether it was in Australia or a trade association in Europe or Asia, that people were more sensitive to the need to use good judgment in terms of what they were doing -- whether in the company or through our trade association.

    Other companies were having those same sorts of discussions because they were troubled too, we were down -- I and some of these other people had been down in Australia trying to settle the AFCO case which proved impossible to do and everybody was concerned that there needed to be better coordination of what trade associations were doing and saying on not all but some of these issues.

    Q. Why was the language used by the trade association in Australia inappropriate? A. I don't remember the entire ad but the language that I recall was something like there is little evidence and nothing to prove that environmental tobacco smoke is harmful to the healthy non-smokers or to non-smokers, something like that.

    And, again, I won't speak for the other people, but one concern I had is, why would somebody use the term 'little evidence' in a big bold ad like that which is subject to interpretation by a lot of people, and why would you want to put yourself in a controversy -- or in the middle of something where you can be accused of what they were actually accused of which is a false and misleading ad.

    Q. So from your testimony concerning the internal discussions at Philip Morris did Philip Morris initiate the request for this meeting among the different companies? A. I don't know if we did or not. I mean I had discussed this issue with, I think I said before, with Mr. Goold, with Mr. Seddon and Mr. Foyle. I had not discussed it, I don't believe, with Mr. Hoel, that whether we were talking about.

    It wasn't just about the trade association issue but it was, you know, we were seeing more and more litigation outside the United States, and that we needed to bring better coordination to the litigation that we anticipated being filed in the future. So sort of this was all coming through the filter of the experience we'd had in the AFCO case that lack of communication and to some extent lack of coordination had led to a problem in Australia.

    We saw future litigation as a distinct possibility, if not a likelihood, and we wanted to make sure there was better communication and coordination going forward. Now, this letter was sent by somebody at British-American Tobacco so I mean, in that way, I guess they initiated this specific meeting but a number of us had talked about it before. [19]