Cigarette makers Thursday tried to portray former Food and Drug Administration chief David Kessler as a biased publicity-seeker as he took the stand as the first witness in the government’s $280 billion racketeering suit against the industry.
Kessler, FDA commissioner from 1990 to 1997, called in 1994 for possible regulation of nicotine as a drug and helped shape the Clinton administration’s tough line with the industry, including the current suit.
Kessler testified to Congress in 1994 that the FDA saw growing evidence that the tobacco industry was deliberately managing the level of nicotine in cigarettes to maintain the addiction of smokers.
“This was ... a personal agenda that you had” to regulate tobacco, Brown & Williamson attorney David Bernick said in cross-examining Kessler.
“I don’t think that’s fair to say,” Kessler told U.S. District Judge Gladys Kessler, who is no relation.
The 1999 lawsuit launched under President Clinton targets Altria Group Inc. and its Philip Morris USA unit; Loews Corp.’s Lorillard Tobacco unit, which has a tracking stock, Carolina Group; Vector Group Ltd.'s Liggett Group; Reynolds American Inc.’s R.J. Reynolds Tobacco unit; and British American Tobacco Plc unit British American Tobacco Investments Ltd.
Brown & Williamson, formerly a unit of BAT, was acquired by Reynolds in July.
The government alleges the companies conspired to mislead the public about the dangers of smoking since the 1950s. It is seeking forfeiture of $280 billion in past profits plus tougher rules on marketing and advertising and more warnings on tobacco products.
The companies deny the government allegations and say they have drastically changed their marketing practices since 1998, when they signed a landmark settlement with state attorneys general that severely restricts marketing and subjects cigarette makers to oversight.
In 2000, the Supreme Court narrowly decided that the FDA lacked the power to regulate tobacco.
The Senate this year passed legislation giving the FDA that authority, but it is uncertain whether the House of Representatives will do the same.
In his cross examination, Bernick presented evidence that the FDA had discussed the possibility of regulating cigarettes as a drug since 1991.
But Bernick told the judge, who is hearing the case without a jury, that it wasn’t until three years later -- after the industry was hit by charges that it had manipulated nicotine levels -- that Kessler decided to act.
Bernick pointed the former FDA chief to a book he wrote on his experiences in trying to regulate tobacco.
Bernick asked Kessler about quoting Clinton as saying “I want to kill them” when the then-president saw documents suggesting the industry manipulated nicotine levels.
“Yes, he (Clinton) was very angry,” Kessler replied.
Bernick also argued that efforts by Brown & Williamson during the 1980s to come up with a high-nicotine cigarette were not an effort to attract new smokers, as critics have suggested.
Instead, he said, it was aimed at making cigarettes safer by enabling smokers to smoke less and inhale less tar.
The trial, now in its third day, is expected to go as long as six months and hear from more than 100 witnesses.
