Death in the West
(Thames-TV anti-smoking documentary) This 27-minute television documentary gave Philip Morris problems over many years. The company executives had been gullible enough to cooperate with the film makers, without checking on their intentions. or their record The only people in today's society that are less honest and trustworthy about intentions than those that work for tobacco companies are documentary film makers.
An English television documentary called "Death in the West" on the Philip Morris company featured a number of 'cowboys', clearly mimicking the Marlboro Man's western style. However these 'cowboys' were suffering from emphysema or dying of lung-cancer which their doctors (who were also interviewed) put down to a lifetime of smoking. Despite their health problems, some of the 'cowboys' were still addicted to cigarettes, and one used an oxygen mask while riding on horseback.
Of course, the cowboys in the documentary were not much more authentic than the New York Midnight Cowboys used by Philip Morris in its ads.
This was a vicious attack on the cigarette industry, and it featured the obviously-evasive answers of two Philip Morris executives interviewed: Jim Bowling (who then headed the tobacco company's defensive efforts and was the right-hand man of the company chairman), and Dr Helmut Wakeham (Director of Research).
The executives had approached their interviews with an arrogant assuredness that they could handle any English television interviewer, and the company had been conned into helping with production, giving the Thames crew access to the cigarette works at Richmond, film footage and copies of their advertising campaigns. The company executives were clearly ignorant about the attacking style of British documentary makers (or thought that the commercial television network, ITV, wouldn't risk offending a major advertiser), and they clearly hadn't done their due diligence since this team had made three very strong anti-smoking documentaries before.
After the first showing of the film in the UK in September 1976, Philip Morris took Thames TV to court to block further programming and distribution of the film. In the meantime, the film went into circulation among anti-smoking groups, and was sold to the US CBS network for its "60-Minute" program.
There were many threats, an injunction, attempts to buy the program rights, and a court battle. Eventually Thames settled out of court (with a confidential agreement) and agreed to destroy all copies of the film. However the film had already leaked out, and one reel was shown on a San Francisco TV station Ñ and photocopies of the confidential agreement were also leaked.
This resulted in a fresh round of legal actions taken against a Dutch film company, Veronica Films, which was making its own documentary about Philip Morris's suppression of the Thames documentary. Veronica Films planned to use clips taken from the Thames film and some footage borrowed by Thames from Philip Morris.
Don Harris, working from PMI's New York office led the attack on Veronica Films, but the negotiations were carried out at the coal-face by Michael Horst and his legal advisor Hugo Brass in Brussels. Eventually they blocked this documentary as well ... or thought they had.
It proved to be a never-ending saga, and a no-win battle for the tobacco company.
Phase 1: Philip Morris assisting with the production.
1976: Thames TV produced the documentary "Death in the West" with references to Marlboro in mid- to late 1976. It was only shown once in the UK, and PM obtained an injunction in a British court to prevent it being shown again. But 'pirate tapes" escaped. (1982 May 12 memo from Andrew Whist)
It is later reported [and denied] that Philip Morris approached Thames to do the story, hoping to get publicity for its Marlboro cigarettes by co-operating on what they believed to be a story about PM's marketing expertise.
1976 July 19: Jim Bowling [Assistant to Joseph Cullman, CEO/Chairman of PM] is advised that they will be filming in August. The crew will also visit the Richmond research center and interview Dr Helmut Wakeman.
1976 Aug 2: The Thames reporter is in touch with James Bowling, who says this is a "long discussed TV special on PM .. in discussion for about ten months [following] a meeting held at Thames in London, with Bowling, Derrick Littlejohn and Bill Shinn [top tobacco lawyer with SH&B].
The focus is, they believe, on the R&D, manufacture and marketing of Merit and Marlboro. "[T]hey could help Marlboro because it is available on the English market." Jim Bowling states for the record.
1976 Aug: No one in Philip Morris seems to have even noticed the direction in which the film was heading when the crew started filming in America. At a much later time they managed to get their hands on the transcripts of the interviews, which were revealing.
1976 Aug: PM staff are clearly overconfident about their ability to handle the English film crew, and obviously haven't done due diligence about their past programs (Three anti-smoking documentaries).
The interview with Jim Bowling was only moderately disastrous, but the one with Helmut Wakeman was a gem. It probably has the first admission of smoking-related health problems ever captured on TV coming from the mouth of a key cigarette company research scientist, and even more damaging was that he was backed into a corner and appeared to treat S&H matters as being of little consequence. When questioned about the dangers of smoke Helmut Wakeham claimed that all things are dangerous — it depends only on the amount — (which is the famous Paracelsus defence). He made the famous statement comparing the dangers of smoking to an overindulgence in apple sauce:
Q. Very few doctors would say that people who eat apple sauce die because they eat apple sauce ... because they don't eat enough apple sauce...?
A. All right. They're entitled to their opinions.
.../snip/... and now we discover there are all kinds of things that are unhealthy.
Q. Of which cigarettes, they say, are one of them ?
A. Yeah, cigarettes are one. So what are we to do, stop living?
The best way to avoid dying is not to be born you know. And if one avoided doing all the things which are alleged to be harmful to people these days we would vegetate in a mountain cave.
1976 Aug 17: Bowling has organised to lend Thames TV five Philip Morris films - including a reel of ads.
1976 Aug 23.: PM is trying to recover the costs of $169 worth of goods the film crew 'purchased' but didn't pay for, from the Richmond company store. !!!!
Larry Wilson, Corporate Relations,writes to Martin:
"It's been a real pleasure working with your crew, and especially Peter and yourself . You are learned men, and I have a great deal of respect for both of you. Further, the general experience gave me some real insight into film and 'television techniques.
[He will get a better insight into the honesty and techniques of film crews when the documentary airs. It is doubtful that the $169 is ever repaid by the crew [just a guess!]
Phase 2: PM injunction to block Thames TV from distributing
1976 Sep 2: Program aired. Full transcript script of the program.
1976 Sep 3: UK representative of Philip Morris, S Loeb, sends a long Telex to Mary Covington (PM and ICOSI), Bill Bill Murray (Head of PM International) and Alex Holtzman (PM Legal) giving details of the program.
His comments are that the "Lawyer view it as terrible, but most people at Trentford think it is a plus for us. [James] Bowling was excellent. [Helmut] Helmut Wakeham was good in some answers. Video tape being sent from London this afternoon".
1976 Sep 9: A hurridly convened meeting of European PM executives views the film in London. (One later document says this is when it was aired on ITV)
1976 Sep 20: /E Philip Morris now set up a plan to prevent further showings:
[Considering the secret agreement entered into (and PM's indignation its breach), this was the course they most probably took. It's very doubtful that a company like Thames TV would normally be scared off by such a flimsy legal attack]
(a) The paramount objective is to prevent the film being exhibited in any way in the US
(b) The subsidiary objective is to prevent or discourage the film being shown in markets where Marlboro is available including a further showing in the UK.
A. A claim for defamation in the UK Courts (rejected because it would attract 'more than usual publicity [and] they would have no way of keeping the S&H issue out of the courts for the first time and not in circumstances under PM's control")
B. A claim over the 'understanding" with Thames (They'd assumed that they would not be attacked in the film) This came under US law, since the agreement occurred in the USA.
C. Whether PM has a claim for "deceit" [which is a bit rich coming from a cigarette company!!]
Other Courses of Action
Attempt to buy the rights of the film through a third party, who would need to be completely trustworthy. The danger of a direct approach is that Thames would sense that PM's indignation was really a cover for its alarm . The outcome then presumably comes a question of price. Unfortunately PM would not be dealing from a position of legal strength based on the facts as we know them.
1976 Oct 5 - 10: Two tobacco lawyers from Shook Hardy & Bacon (SH&B) were now dispatched to dig up evidence on the film crew, and possible misleading conduct of the program's producers. There is no mention in their report that these lawyers revealed that they were acting for the tobacco industry — and every reason to believe that they didn't.
Firstly they interview one of the 'cowboy' (Harlin) who had participated in the film, and quizzed him in detail about the filmmakers. They managed to get his full life- and work-history [they were clearly searching for other possible toxins to blame for his lung-cancer], and they did find out that the filmmakers had stretched the story a bit — Harlin wasn't really a cowboy, only a Westerner who liked riding.
• Harlin's cancer specialist was also interviewed but refused to give them copies of Harlin's medical records.
• They also met and interviewed a number of the other supposed 'cowboys' including Bob Julian.
• They then interviewed, by telephone, the medical specialist who looked after Bob Julian (he died shortly after). This doctor obviously realised who that they were tobacco lawyers and took objection to them (as they reported) "contacting Julian and the others in the film without making sure that we fully identified our clients and the purpose of the interview." The doctor broke off the telephone call and may have warned his fellow cancer specialists, because the other doctors they approached by phone did not return their calls.
They also obtained the death certificates of one of the 'cowboys' who had died, to make sure he had died from lung-cancer.
• The week after Harold Lee's funeral they approached his widow in a restaurant, where she worked as a waitress. She didn't want to be interviewed, but they managed to extract considerable information about Harold Peter N Lee "as we stood at the cash register."
• They also visited the family home and interviewed Harold Lee's daughter when they found that her mother wasn't there.
1976 Oct 11: ASH conference in London on "Smoking and the Media" . Transcript of speech by Peter Taylor (Reporter) and Martin Smith (Director of the film) This was their fourth anti-smoking film (also "Dying for a Fag, Licence to Kill, Ashes to Ashes" ). This was just after the first, and only, UK showing of the film on TV.
1976 Oct 19:: Another of the cowboys died (others had died before the program aired)
See his obit
1976 Oct 23: Report on the Shinn and O'Neill (SH&B) research
1976 Nov 11: PM writes to Thames chairman Howard Thomas [Hand delivered to him at Thames], saying he has breached their undertaking over Death in the West by allowing copies to be shown in the USA to members of the American Cancer Society. And had not met their executives, as promised.
• He replied telling them to take a jump, in no uncertain terms.
1976 Nov 16: In a more conciliatory tone, the PM UK executive DV Littlejohn writes to Thomas saying they are not contemplating legal action, but want Thames to agree not to distribute the film further, or show it again. Littlejohn wants an "off-the-record" meeting.
• On the same day, the Washington Post reports that CBS television's "60-Minutes" Program had bought the rights.
• The cowboys featured in the program keep dying. Philip Morris now begins resorting to a new strategy — attacking the claim that these were real cowboys and ignoring the fact that they were westerners who had died of smoking-related lung-cancer. "Coughing Cowboys bite the dust" types stories appear in the newspapers.
1976 Nov 22: Philip Morris now begins to play hardball, rolling out its lawyers to threaten CBS if it runs the program on 60-Minutes. ++++ Their main thrust of their attack poses the question, whether these are genuine cowboys or just westerners sitting on a horse. They are trying to take the high-ground of protectors of the public interest (from the diabolical manipulations of a film crew!). The lawyers write to CBS:
"A shoddier piece of deception and misrepresentation is difficult to conceive and it is hard for us to believe that CBS would be a party to its further promulgation .
As Felix [Kent] has told you from London, Philip Morris through counsel, will serve and file immediately a writ against Thames to enjoin further use of this film.
• On the same day, someone at CBS interviewed Peter Taylor by phone, quizzing him about the rights they had to use the Philip Morris advertisements. The transcript of this telephone conversation was then given to Philip Morris, so CBS had presumably already rolled over.
[Not long after this time the Board of CBS came under the control of the Tisch family who owned the Lorillard cigarette company.]
1976 Nov 24: Philip Morris have now taken Thames TV before the UK High Court
1976 Nov 24: to June 1977 List of legal actions PM took against Thames TV
1976 Nov 29: Letters sent to Peter Taylor, by US medical specialist (Leo McMahon) in support of the program and his part in it, is now being copied and passed to Philip Morris. Also personal letters from the families of the 'cowboys' who had died. [A good sign that Thames and PM had come to some agreement, and that included co-operating on getting Taylor and his director — both of whom resigned shortly after]
1976 Dec 1: PM tells the High Court that its main aim in taking this action is to stop the program being shown in the USA.
1976 Dec 6: Lord Elwyn Jones, Lord Chancellor in the UK, issued a 'temporary restraining order. It was said that Thames then 'capitulated' [signing secret out-of-court settlement]
1976 Dec 10: The court has issued an injunction stopping Thames TV from further distributing the film. It was generally agreed by media commentators that Philip Morris and the tobacco industry had lost more than they'd won.
1977 May 18: At about this time Thames agreed to return to Philip Morris all sections of the company advertisements and all copies of the Philip Morris executives interviews.