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Tobacco Lawyers Challenge Former FDA Chief Kessler in Tobacco Trial [09/24-4]
Excerpts from: UPDATE 1-Former U.S. FDA chief quizzed in tobacco trial
Reuters [09/23/04]
Cigarette makers on Thursday tried to portray former Food and Drug Administration chief David Kessler as a publicity-seeker out to get the industry as he took the stand as the first witness in the government's $280 billion racketeering suit.
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.
But a lawyer for Brown & Williamson tried to discredit his testimony about an FDA probe that found growing evidence the tobacco industry was manipulating 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," replied Kessler, now Dean of the University of California, San Francisco, School of Medicine.
He is not related to U.S. District Judge Gladys Kessler, the judge who is hearing the case without a jury.
Bernick presented evidence that the FDA had discussed the possibility of regulating cigarettes as a drug since 1991.
But Bernick said it wasn't until three years later -- after the industry was hit by charges in the media that it had manipulated nicotine levels -- that Kessler decided to act.
The 1999 lawsuit launched under President Bill Clinton targets Altria Group Inc. MO.N and its Philip Morris USA unit; Loews Corp.'s LTR.N Lorillard Tobacco unit, which has a tracking stock, Carolina Group CG.N ; Vector Group Ltd.'s VGR.N Liggett Group; Reynolds American Inc.'s RAI.N R.J. Reynolds Tobacco unit; and British American Tobacco Plc BATS.L 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, 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 U.S. Supreme Court narrowly decided that the FDA lacked the power to regulate tobacco.
The U.S. Senate this year passed legislation giving the FDA that authority, but it is uncertain whether the House of Representatives will do the same.
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 produce a high-nicotine cigarette were not an effort to attract new smokers, as critics have suggested.
Instead, Bernick said, the high-nicotine strain of tobacco, known as "Y-1," was designed to try to make cigarettes safer by enabling smokers to smoke less and inhale less tar.
Bernick said Brown & Williamson ultimately ended the Y-1 project because it failed company taste tests.
But David Kessler speculated the company decided to get rid of Y-1 because of fears it would attract government scrutiny.
"We had raised questions about (nicotine) manipulation, and this was the ultimate form of manipulation," he said.
The trial, which reconvenes on Monday, is expected to last as long as six months and involve more than 100 witnesses.
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