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Tobacco wars

A QUESTION OF INTENT·David Kessler·Public Affair/BBS Pulications, New York· US $27.50

By Pranay Lal
Published: Wednesday 15 August 2001

-- seldom do public office holders write memoirs which are inspiring without lauding their own heroics. In a rare inspiring book, A Question of Intent , David Kessler narrates the story of his seven years with America's largest but toothless watchdog the Food and Drug Administration ( fda ). Kessler, a trained medic and law grad had an impressive academic and professional career before he was offered the post of the Commissioner of the fda . He appears to be an over-qualified man for a political post in an under-achieving agency. He realises that the pressures on the fda by different lobbies and interest groups are immense, his staff lacks motivation and that he himself has no one in the Capitol Hill to look up to. But he is a good observer of events around him and a fast learner.

It is apparent from page one that he is an upright man who is a little lost in the corridors of power. However, he manages to achieve minor victories, which boost the morale of his organisation. His action against Proctor and Gamble against the use of the word 'fresh' in a citrus fruit concentrate created a precedence, which the food industry immediately noticed. He showed strong leadership qualities when he took a bold step to recall a cyanide-laced drug from the market, being fully aware of the panic it could create. He asked diverse interest groups to participate in the experimental protocols for aids (and many other diseases) drugs to make the process transparent and speedier and to get the approval of the stakeholders. His biggest win was to convince the Congress and the President to pass the food and nutrition labelling bill, something that many in the industry and government agencies like the us Department for Agriculture openly opposed.

However, the real challenge for Kessler was the tobacco issue. Everywhere he went, he was asked why tobacco was not under the purview of the fda . He was aware of the political implications of taking up a case against the powerful tobacco lobby. He was also aware of the past efforts to muzzle the tobacco beast and how corporate America had proved too hot for the agency to handle. Yet tobacco did not become an obvious mission for Kessler for sometime. He had tobacco at the back of his mind but needed a novel approach to meet the challenge.

Kessler's breakthrough came when a creative young man, David Adams, who specialised in the concept of intended use, made a presentation and said, 'Cigarette manufactures can take the nicotine out, but they leave it in. That goes for the question of intent.' This idea struck Kessler- it was both simple and powerful, which showed that regulating nicotine in cigarettes was possible. Kessler laid the groundwork for taking on tobacco. After he was re-nominated by Bill Clinton, who was outspokenly anti-smoking, Kessler stepped up his efforts to have the fda explore whether it should regulate tobacco, something his predecessors had refused to do. The book unravels slowly and teasingly the process of how Kessler forms his team of investigators to look for clues that would help build a strong case against the tobacco industry. The process of getting information from insiders with funny names Deep Cough, Cigarette, Cigarette Jr, and Research is full of intrigue. He hires a former cia agent and a polygraph expert to trace insiders and to coax them to speak.

What is to be proven is that tobacco is addictive, that it is spiked by the industry to make it addictive and that the industry lied about its nicotine to tar ratio to the public.

Kessler's research teams search for examples from the industry's own journals. The two interrogators seek insiders and trace for their stalled experiments and recalled papers. Kessler himself visits old books for old advertisements which together provide a strong argument against the tobacco industry. Armed with this information, Kessler chooses to attack the tobacco lobby on their oft repeated argument - that the American public has the right to choose and that in the past they have been able to kick the habit, mostly without any counselling.

The narration builds up a fever pitch excitement to the trial. The anxiety of the team and Kessler himself is palpable. Backdoor negotiations and horse-trading by corrupt tobacco executives, senators and Congressmen is exposed. In front of the Waxman Committee on March 25, 1994, Kessler starts his argument with a clear succinct speech '...two thirds of adults who smoke say they wish they could quit. Seventeen million try to quit each year but for everyone who quits, at least nine try and fail. Three out of four adult smokers say they are addicted.' He then goes on to discuss nicotine levels and how cigarette manufacturers manipulate levels of nicotine, and that in fact cigarettes in fact qualify as 'high-technology nicotine delivery system'. He re-iterates that self-administration is the classic nature of addiction (called satisfaction or impact by the tobacco industry).

The next hearing is more dramatic. Chairperson Waxman invites the ceo s of the top seven tobacco companies to testify. The executives are prepared for this by their attorneys, but clever and diligent inquiry breaks down the cohesion among them. Bill Campbell, ceo of Phillip Morris, finally conceded that his company manipulated tar and nicotine concentrations. In the days to come, the belligerent questioning comes under flak- the media label Waxman a McCarthy and ask that the ceo s be left alone.

Between hearings, Kessler and his team continue to visit tobacco plants and probe for more information which could prove handy in the testimony. They learn about secret laboratories and how tobacco companies spend as much as some pharmaceutical drugs to improve nicotine delivery.

Kessler sometimes seems unsure and unconvinced to take up the tobacco industry. He lauds his colleagues for their ideas and takes modest credits. Despite this, the self-effacing nature of his interactions offers a useful insight to the bureaucratic limitations and frustration of an administrator. Expecting to be stymied by higher ups at the Capitol Hill Kessler lays his own network of contacts in the White House, and as Bill Clinton engineered his election campaign, Kessler frames an approach that concentrates on companies that focussed on marketing cigarettes to teenagers. At a news conference with Bill Clinton, he announces new regulations designed to discourage teenage smoking including a ban on running advertisements with cartoon figures like Joe Camel, selling cigarettes through vending machines and sponsoring sport events.

In February 1997, Kessler resigned from the fda to join Yale. In April that year, the court announced a resounding defeat for tobacco interests. The fda now has the authority to regulate tobacco and its distribution. By early 2000, by which time Kessler had left the fda , the Supreme Court gave 5-4 verdict in favour of the fda . In July 2000, the Florida jury levelled a punitive damage of us $144.8 million against the industry. Clearly the fda had dismantled one of the most powerful and corrupt industries in Corporate America. The political impact of this case was far reaching. In the words of Bill Clinton, he "lost the House because of two issues, gun control and tobacco." Several re-run candidates who ran on tobacco money lost their seats in the next round of elections.

The book reads like a Le Carre only that this is true to life. Kessler appears to be a no nonsense administrator. Ready to stand up for the right he is yet not foolhardy with his decisions. He is meticulously well prepared as good lawyers are and is precise like a surgeon in his timing. He attributes his qualities to his two teachers - the creative but disciplined ecologist Oscar Schotte and the radical and outspoken historian Henry Steele Commager. From them he imbibed the virtues of truth and fearlessness and the courage to take responsibility. The atmosphere is quite like the Bob Woodward- Carl Bernstein thriller, All the President's Men . The story unfolds slowly and does not distract the reader with technical and legal jargon.

The book is also full of nuggets of information. For example, it shows how Philip Morris created a pressure group outside the company called the National Smokers Alliance and how Coca Cola used cocaine till 1902.

Finally this is a how-to book for all those whining and complaining bureaucrats who feel powerless to doing anything. This is a book for those who wants inspiration to make things happen in their office. It is like a practical version of Machiavelli's The Prince , where friends and enemies are assessed and timing and positioning is of utmost importance.

If you have ever wondered how the tobacco industry has got away with murder for so long, then you find your answer here.

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