Canada's fight with Big Tobacco is back on

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Canada's cigarette war has suddenly sprung back to life after years in legal limbo.

There have been a series of stunning developments over the last two weeks in this uniquely Canadian battle for compensation from the tobacco industry for the deaths and disease caused by its products.

Although many of the victims have died since the decades-long drama began, a huge vault of court documents now sits open, revealing long-held industry secrets about the way cigarettes were marketed in Canada.

The action resumed two weeks ago when the Quebec Court of Appeal upheld the historic 2015 ruling that three Canadian tobacco companies failed to warn customers about the risks of cigarettes.

Canada's three largest tobacco companies — Imperial Tobacco Canada, JTI-Macdonald Corp. and Rothmans, Benson & Hedges Inc. (RBH) — were ordered to pay almost $14 billion to compensate thousands of Quebec smokers who developed cancer and emphysema between 1950 and 1998.

Faced with the renewed threat of a multi-billion dollar payout, two of the companies immediately resumed their legal manoeuvres by applying for creditor protection. By mid-week both Imperial Tobacco Canada and JTI-Macdonald were safely under the court-ordered umbrella, and RBH was assessing its options.

None of these three companies is anywhere near bankruptcy.- Neil Collishaw, research director, Physicians for a Smoke-Free Canada

Seeking creditor protection is a strategy that Imperial Tobacco Canada has been planning since 2015, according to court documents filed this week.

"Our intentions were always to challenge the judgment," a spokesperson for Imperial Tobacco Canada told CBC News in an email, "as we continue to disagree with the judgment as Canadian consumers and governments have been aware of the health risks associated with smoking for decades, and we should not be held responsible for the personal choices made by adult consumers."

For its part, JTI-Macdonald said the future of the company was at stake.

"If the Quebec Court of Appeal payment order proceeded, it would have resulted in the bankruptcy of our company," a JTI-Macdonald spokesperson said in an email.

The idea that the Canadian subsidiaries of major international tobacco companies are in financial jeopardy was met with skepticism by some observers.  

"None of these three companies is anywhere near bankruptcy," said Neil Collishaw, executive director of Physicians for a Smoke-Free Canada, who has been following the case for years.

• Quebec's top court rejects appeal of landmark $15B tobacco ruling
• 2 tobacco firms' payouts in $15B lawsuit on hold after court rulings

The impact of this new creditor protection has been profound.

First, it has frozen the long-awaited payments to thousands of Quebec smokers who have developed lung and throat cancer and emphysema. The original plaintiff in the class-action suit, Jean-Yves Blais, died of lung cancer in 2012 just as the trial was starting. Many others have also died.

At the same time, all 10 provinces, the Northwest Territories and Nunavut are fighting their own battles with Big Tobacco in a series of court actions to recover the health-care costs of tobacco-related illness. Now all of those court actions have been suspended.

"They're looking for a sweetheart settlement," said Rob Cunningham, senior policy analyst with the Canadian Cancer Society, who has been following the litigation closely. "They've been ordered by a court in Quebec to pay billions of dollars because of decades of wrongful behaviour causing disease and death on a massive scale. And now they don't want to pay what they've been ordered to pay."

Meanwhile, all of the court activity has created a cache of tobacco company documents that tells a uniquely Canadian version of the tobacco saga.

"It's a treasure trove of previously secret internal documents that really says in black and white how they intentionally were engaging in behaviour that had devastating consequences," said Cunningham.

Convincing young Canadians to start smoking

In a searchable database of 42,000 confidential memos and other documents, it's clear that Canadian tobacco company executives believed the industry might not survive because so many Canadians were quitting smoking.

In 1995, one industry memo warned that "unless we do something this industry will cease to exist."

Getting young people to start smoking was one recommended strategy.

A 1984 marketing memo with the title A Prognosis for the Canadian Cigarette Industry was so sensitive the executive warned his boss that "given the nature of the material you and I now have the only existing copies of this document in the world."

Young Canadians have less and less positive information about smokers and smoking.- Confidential tobacco industry marketing document, 1984

The marketing department employee went on to complain about the lack of role models for young smokers because so few public figures were still openly smoking.

"Young Canadians have less and less positive information about smokers and smoking," he wrote. "Under these conditions, we will get less starting. In fact, these are the conditions which will produce no experimentation."

One of the top three strategies he proposed was to "initiate projects to [ensure] the continued uptake of tobacco products by young Canadians."

The internal tobacco documents also reveal growing sensitivity to bad press and a developing awareness of how to use the media to get the tobacco industry's message across.

"Think about it for a moment," wrote one executive in a confidential memo in 1976. "Every single question from the press, every telephone interview, every invitation to participate in a radio or TV show is a possibility of getting some free time or space to get our message across."

And there was also the option to "sue the journalist and the media even if only for symbolic damages."

"Merely reducing the number of adventurous journalists who would be willing to take the risks associated with signing a grossly biased story would already constitute a major victory," he wrote.

Knew about cancer risk in 1958, document shows

And it's clear from the documents just how long the industry was aware of the health risks.

In 1958, three tobacco industry scientists travelled to laboratories around the U.S. and in Montreal to gather data about the cancer risk. They reported that all but one of the scientists they met on that trip "believed that smoking causes lung cancer if by 'causation' we mean any chain of events which leads finally to lung cancer and which involves smoking as an indispensable link."

Quebec Superior Court Justice Brian Riordan concluded that they kept this information to themselves, writing in his 2015 decision, "no one in the Canadian tobacco industry was saying anything publicly about the health risks of smoking outside of corporate walls."

The documents also reveal oddly prescient speculation about future tobacco products that could one day turn the industry's fortunes around.

Perhaps we could develop cigarettes that would not have to be lighted with a flame …-  Confidential tobacco industry document, 1976

"I cannot even speculate on what they are but we must invest significant levels of resources in finding new, positive ways — that may not be cigarettes — to deliver the benefits of tobacco with a positive social and personal context," said one memo from 1995.

"Perhaps we could develop cigarettes that would not have to be lighted with a flame … that would burn without smoke … and that would not leave butts. Ridiculous? Perhaps. But so was Jules Verne's idea of an underwater vessel called Nautilus or of a manned trip to the moon. We could give it a try," another industry executive wrote in 1976.

Now that public health officials are grappling with the new phenomenon of youth vaping, these tobacco documents have become increasingly relevant, said Collishaw.

"People who don't learn from history are condemned to repeat it."

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