FWO Fellow at Ghent University, Ghent, Belgium
In this first chapter on the historical aspects of the testimony of expert historians in tobacco litigation, I discuss the origin and rise of the tobacco industry and its product. There are seven key developments which I review here: flue-curing, safety matches, mechanization, the oligopolistic structure of the industry, World War I, taxation, and aggressive advertising campaigns. Their combined dynamic introduced, what Brandt has called: “The Cigarette Century.”
You must have a cigarette. A cigarette is the perfect type of a perfect pleasure. It is exquisite, and it leaves one unsatisfied. What more can you want?
Oscar Wilde (1891)
In this chapter, I present an elementary history of tobacco.1 After the discovery of America, tobacco products soon conquered the known world. Chewing tobacco, pipe tobacco, and cigars were introduced to the world from the sixteenth century onward. It was only in the first decades of the twentieth century that cigarettes became the number one tobacco product. In explaining the impressive triumph of the cigarette, I identify seven key developments which led to the almost inherent presence of cigarettes in social practices throughout the twentieth century. For this chapter I drew from two field defining works; The Cigarette century by Allan Brandt and Golden Holocaust by Robert Proctor. Both works are extremely thoroughly documented. These books are the products of litigation-driven historical research. Brandt and Proctor have served as expert witnesses in tobacco litigation. The research both historians have done has been used as part of their witness testimony in court. A book review in the British medical journal The Lancet stated that: “[t]he Cigarette Century is a model for the writing of engaged history: should others follow it, it would not be the worst thing for medical history.”2 While in the same journal Proctors work was described as “Proctor’s morally engaged historical analysis represents a damning indictment of the US tobacco industry and its well-paid accomplices.”3 By addressing the history of the cigarette here, I can more clearly demonstrate which historical evidence in tobacco litigation historians like Brandt and Proctor bring to the courtroom as expert witnesses.
10.1 The Early History of the Nicotiana Tabacum
Before the cigarette there was tobacco.4 The tobacco plant is native to all of the Americas and has been smoked, chewed, snorted, and drunk for hundreds or even thousands of years.5 Long before Columbus and other Europeans went ashore the newly discovered continent, tobacco had been domesticated and cultivated by Native Americans. The Mayans and the Toltecs smoked pipes and rolled tobacco leaves together to smoke. Tobacco played a critical role in their religious and healing practices. Depending on the manner in which it was used, tobacco could produce hallucinogenic experiences.6 No one knows whether there were any diseases caused by smoking in the pre-Columbian Americas.7 Spanish explorers testified to having seen natives smoke dried leaves or smoking tobacco from a pipe. The conquistadors brought tobacco back home with them and introduced it in Europe. Especially tobacco’s possible medical advantages and its ability to alter the psychic state of its users, received a lot of attention.8 The active and addictive substance in tobacco; nicotine was named after Jean Nicot. He was a French diplomat and consul to the King of France, who brought the plant from Portugal to his fatherland in 1559.9 Nicot described tobacco oil to be a powerful toxin.
Soon after it was brought to the continent, tobacco became a European commodity.10 Within a century after Columbus’ voyage, tobacco was grown around the globe.11 Especially the Portuguese, with their globally connected network of trade posts, made tobacco into a top notch commercial commodity which secured its global spread. Brandt remarks: “Although the health implications of this traffic were widely noted from the earliest contact, it would have been impossible to predict that tobacco would produce a pandemic three centuries later.”12
Some Europeans were disgusted by the habit of smoking. In 1604, King James I of England wrote a treatise titled A Counter-Blaste to Tobacco. In this essay, the King declared his disgust for the “vile costume of tobacco taking.” In what now seems an unheeded warning,13 the king continued: “a custom loathsome to the eye, hateful to the nose, harmful to the brain, dangerous to the lung.”14 In addition to his outcry, the king announced a substantial tax on tobacco products, thereby setting a precedent for future governments.15 Notwithstanding opinions such as these, demand for tobacco rose sharply, and by the end of the seventeenth century half of the adult male population in England was smoking.16 Other Europeans countries saw the same trends.17 The rising demand for tobacco helped shape the character of the American colonies.18 Although growing tobacco was a very difficult and a risky process which took 15 months to complete, it remained the most profitable of crops for American settlers.19
Tobacco consumption continued to rise and new production methods were researched and altered to meet growing demands. Pipe tobacco, chewing tobacco, and rolled cigars became widespread. “By the nineteenth century tobacco and its products were deeply embedded in the new nation’s [the United States] social experience–in its commerce, its labour, its leisure, and its social ritual–all before the cigarette became the dominant form of tobacco consumption.”20 Charles Dickens, on a tour through the United States in 1842, was struck by the ever-present habit of chewing tobacco. He observed that everyone had accepted this “filthy custom.”21 All three forms of smoking gained popularity. Cigar smoking became a powerful symbol of social authority and of power.22
10.2 The Shift to Cigarettes
Although cigarettes had been around for centuries, they had never been popular. Lacking the means for more expensive tobacco products, cigarettes were a cheap commodity for the urban poor and young. Brandt argues that the shift towards a cigarette oriented tobacco industry came about through radical changes of production means, which in turn led to changes of tobacco consumption patterns.23 Proctor concurs with Brandt that cigarettes were not “terribly popular until the early decades of the twentieth century.”24 Until the nineteenth century tobacco use caused only limited health effects, but the shift towards cigarettes proved to be “far more popular and far more injurious.”25 In explaining the triumph of the cigarette, Proctor points out eight crucial events, six of which I shall elaborate on in this chapter, namely: flue-curing, matches, mechanization of manufacturing, World War I, taxation, and mass marketing.26 The other two reasons, (1) manipulation of knowledge and (2) manipulation of tobacco chemistry, were not added to this chapter because they partially describe the policy of tobacco companies when cigarettes had already become a dominant tobacco product, which is the subject of the following chapter and another important element in assessing the alleged negligence claims made in tobacco litigation against the tobacco industry.27 In addition and following Brandt, I added one more reason; namely the oligopolistic structure of the tobacco industry. This overview on the origin of the cigarette and the tobacco industry offers historical characteristics of a product and an industry that defined America. Furthermore, this historical overview explains the origins of health-problems caused by smoking, which are also addressed in tobacco litigation. Moreover, by examining a short genealogy of the tobacco industry, we will better understand the industry’s legal tactics in court.
10.2.1 The Invention of Flue-Curing28
Tobacco had to be dried before it could be used. Open fires proved unpredictable and hard to control. By the middle of the nineteenth century large furnaces with iron piping were used in combination with charcoal instead of wood to dry the tobacco leaves. This modus operandi was named flue-curing. Flue-curing produced enough heat and could be carried out under controllable conditions.29 The danger of fire was reduced and the tobacco was no longer exposed to smoky fumes that could wreck the taste. But as Proctor notes, the most important consequence of the flue-curing process was achieved in smokability. Bright tobacco, tobacco dried by flue-curing tasted much milder when smoked. The process increased the sugar content. Sweeter and more flavourful cigarettes are milder and thus better inhalable. Tobacco companies continued to research and develop cigarettes that were more comfortable to inhale. This American blend would revolutionize smoking.30
According to Proctor, “[i]t is hard to overestimate the impact of this innovation.”31 Proctor’s statement expresses the fact that until that point in history smokers rarely inhaled into the lungs but rather only into the mouth and nose. Up until the 1950s American epidemiologists asked on their survey forms: “Do you inhale?”32 The smoke of flue-cured tobacco was easily inhaled into the lungs, producing a more profound level of addiction.33 Brandt comes to the same conclusion: “[n]icotine addiction was born in the serendipitous marriage of bright tobacco and flue-curing.”34 The deadly health effects of drawing smoke and nicotine into the lungs prompted Brandt to the following conclusion: “[t]his physiological process would create a mass industry and a consequent epidemic of tobacco-related diseases.”35 Proctor goes one step further when he argues that “[f]lue curing may well be the deadliest invention in the history of modern manufacturing.”36
Not until the nineteenth century were matches with a controlled phosphorus burn devised.38 Before matches or lighters, smokers needed a pre-existing flame or some kind of tinderbox. Matches allowed “the making of fire to become mobile, convenient, and ubiquitous.”39 White phosphorus matches were invented in the 1830s, but these were very dangerous. These matches caught fire when a person was unaware and caused poisonous fumes and rotting teeth.40 Safety matches were soon developed, these could only be ignited using a specially prepared surface on the box. This advancement limited the risk of accidental fire. Safety matches were easily produced in large numbers. Furthermore, they demanded little skill to light cigarettes with great speed and convenience. These innovations were essential to the rise of cigarettes as an immensely popular product.41 The twentieth century saw the proliferation of fire-making devices, like the liquid-fuel metallic lighter. These lighters were rapidly mass produced, making it even easier to light a stick whenever and wherever you wanted.42
10.2.3 Mechanization of Cigarette Manufacturing43
Cigarettes were hand rolled by cigarette rollers up until the first years of the 1880s. These workers produced around 500 to 1,500 cigarettes a day.44 Despite several patents on automated cigarette-rolling machines, hand rolling remained the only process reliable enough for commercial cigarettes. A young Virginian inventor, named James Bonsack designed an automated cigarette rolling machine in 1881. It required three human attendants, but it produced over 200 cigarettes every minute.45 The next machine Bonsack designed, produced over 100,000 cigarettes on a daily basis, multiplying the daily production rate of traditional hand rollers by 200.46
The cost of production fell, and soon machines replaced hand rollers throughout the industry.47 The Bonsack machine did not fare well with the cigar industry, which was at the time a much older and more successful industry than the cigarette business.48 Cigars were far more difficult to produce with a machine, due to the fact that cigars are rolled in leaves instead of paper.49 At the beginning of the twentieth century, companies from other nations followed the American example and designed better and faster devices. British, French, and German machines soon rivalled American designs. By the turn of the century tobacco rolling machines produced 500 cigarettes per minute.
This evolution put the cigarette rollers at a serious disadvantage. In the 1930s cigar rollers in Germany protested against this mechanization out of fear for their jobs. The Nazi government responded with legislation which banned the use of machinery in cigar factories. The cigar industry returned the favour by supporting the Nazi party. The Sturmzigarette the storm troopers’ own brand and their chief source of income, also remained hand rolled.50 After the war, production followed rising consumption rates. In 1976, the Molins Mark 9 produced 5,000 cigarettes per minute, the Molins Mark I had been the first in 1926 to produce over a 1,000 cigarettes per minute. By 1998, the Lorillard’s machine produced 16,400 cigarettes per minute. The absolute state of the art cigarette-rolling machine is called the G. D. 121 P, which has an output of 20,000 cigarettes per minute.51 Rapid production and lowered costs were the benefits of mechanization for the tobacco industry. In addition, machines made it possible to add additives to tobacco products. Many of these can be regarded as toxic or poisonous. As we shall see in the following chapters, tobacco companies have stressed that smoking is an adult choice. It is the consumer’s choice to smoke, fully aware of the health hazards attributed to smoking. Cigarettes are presented by the industry as if they were an unalterable and natural part of human custom. Proctor remarks that historians, policy makers, or even tobacco control experts have heeded little attention to the way in which cigarettes are produced. “That, of course, is precisely how the industry wants it: all the burden of ‘choice’ is put on the smoker, while none on the manufacturer.”52 The history of the mechanization tells us a whole other story; the way in which cigarettes are produced and which additives are used, are the responsibility of the industry itself. The manner in which cigarettes are produced and to what extent the industry uses additives, like heightened nicotine levels, are important issues in tobacco litigation. This is just one of the historical insights on the cover-up administrated by the tobacco companies that historians have brought to the courtroom as expert witnesses.53
10.2.4 The Oligopolistic Structure of the Tobacco Industry54
Brandt describes another and no less important innovation by James Duke, the first cigarette producer to completely replace his hand rollers by Bonsack machines. Using his strategy of aggressively undercutting the selling-price of his competitors on the one hand and the continuous mechanization of his production process on the other hand; Duke claimed a dominant position in the American tobacco industry in the final decades of the nineteenth century. Duke also sought to expand the company abroad, establishing companies in countries like Canada, Australia, Britain, Japan, and China.55 Thereby laying the foundations of a global tobacco industry. In his quest to make a more efficient and profitable company, Duke convinced most other tobacco companies to join him in a trust that would be known as the American Tobacco Company. In 1890, the newly formed Tobacco Company could claim a virtual monopoly, controlling almost 90 % of all cigarettes sales in the United States.56 The consolidation of the Tobacco Trust transformed the tobacco industry from a collection of small family-companies into a conglomerate of a few players, Big Tobacco was born.
During times of economic downturn at the beginning of the twentieth century, the US Congress and US federal courts sought to limit the power of corporate capitalism. In 1907, the Department of Justice indicted American Tobacco for violation of the Sherman Act.57 The American Tobacco Company not only controlled 80–90 % of all cigarettes sales, but also 75–85 % of sales of all other sorts of tobacco products, with the exception of the cigar business. American Tobacco was one of the three largest companies in the United States, together with US Steel and Standard Oil. When the Department of Justice filed a lawsuit against American Tobacco, accusing the company of being in violation of the Sherman Act, the federal court that initially heard the case banned the company from interstate trading until competitive conditions were restored. In May 1911, the US Supreme Court ordered the dissolution of the American Tobacco Company. That very same day, the Supreme Court also ordered the breaking up of the Standard Oil Trust.58 The court described how the ruthless design of the trust erected a perpetual barrier for any other company that wished to enter the tobacco trade. The court found that the trust had an injurious restraint on commerce and trade.59 For 8 months American Tobacco and the attorney general and other court judges negotiated a settlement. The settlement that was agreed upon was tagged by assistant attorney general Jim McReynolds, who was the chief prosecutor of the case, as a: “subterfuge fit only for the scrapheap.”60
What McReynolds meant was that although on paper the Tobacco Trust had been dissolved, the major players in the industry remained in control of the dominant positions in the market. One commentator at the time, Louis Brandeis, called the settlement “[a]n illegal trust legalized.”61 Brandt arrives at the same conclusion: “[d]issolving the monopoly merely put an oligopoly in its place.”62 The tobacco industry became almost impossible to enter for new competitors because of its oligopolistic structure. Another reason why it was so difficult for new companies to compete with established tobacco companies was: consumer loyalty. Smokers were and still are very loyal customers. Many smokers stick to one brand during their entire life. Entering the market for smaller tobacco companies was “like picking a number at roulette.”63 After the settlement, three major tobacco companies remained: the American Tobacco Company, Liggett & Meyers, and R.J. Reynolds. Even during the Great Depression the big three were not threatened by so-called cheapies, cigarettes that were made from very low-quality tobacco.64 Only one company would be added to this dominant trio; namely Philip Morris.65 Philip Morris entered the ranks of the Big Three in 1933 as an independent company that had arisen from the debris of the old American Tobacco Trust. Its most famous brand was the Marlboro cigarette.66
The boundless ambitions of Duke and other cigarettes producers gave rise to a tobacco industry controlled by a few players. Utterly exploiting the critical link between mass production and mass consumption and fully aware of the highly addictive properties of their product, the industry strived to achieve the global and impressive potential of their product.67