BETWEEN:

Proceeding under the Class Proceedings Act, 1992

1. Particulars with Respect to Paragraph 10 of the Amended Statement of Claim

Paragraph 10, Amended Statement of Claim:

He was warned by his physician to quit smoking but was unable to do so and continued smoking after the surgery.

Paragraph 1, Defendants' Supplementary Demand for Particulars

...the dates, circumstances and substance of all advice or warnings about smoking, whether from a physician or otherwise, received by each named plaintiff, and particulars of the dates and details of each named plaintiff's attempts to quit smoking.

Page 7, Order of Master Peppiatt, Dated April 12, 1996

The plaintiffs also plead that each of them was advised to stop smoking and attempted to do so without success. The defendants require particulars of this as set out in paragraph 1 of the supplementary demand for particulars of RJR-Macdonald Inc. This is, of course, within the knowledge of each plaintiff and not within the knowledge of the defendants and since the plaintiffs have chosen to plead this I think that the defendants are entitled to the particulars sought. I appreciate that given the time span in issue, it may well be difficult to furnish details.

A. David Caputo was advised by his surgeon to quit smoking shortly prior to his tongue and neck surgery for cancer in 1988. Mr. Caputo has been, and continues to be advised to quit smoking by his surgeon at every post-surgery follow-up appointment.

B. Both following the 1988 biopsy result indicating a malignant tumour in his tongue, and following his tongue and neck cancer surgery, Mr. Caputo has made the following attempts to quit smoking:

(i) he tried, and continues to try to quit smoking approximately six to ten times per year, by resolving to stop smoking, and trying to fight the physical craving to light up.

(ii) he underwent hypnotherapy in 1991 or 1992.

2. Particulars with Respect to Paragraph 11 of the Amended Statement of Claim

Paragraph 11, Amended Statement of Claim:

She has attempted to quit smoking on numerous occasions, spending in excess of $3,000 for various forms of assistance.

A. Luna Roth was advised to stop smoking:

(i) on numerous occasions by her family physician since approximately 1969.

(ii) by other general practitioners, who may have filled in for her family physician, from time to time since approximately 1969.

(iii) by various unknown emergency department physicians whom she has seen, from time to time since the early 1970s.

B. Ms. Roth has made the following attempts to quit smoking:

(i) in approximately December 1991, she sought, and received advice about the following methods to quit: acupuncture, hypnosis and Nicorette gum.

(ii) between 1992 and 1995 she has undergone hypnotherapy.

(iii) between 1992 and 1995 she has been prescribed the transdermal nicotine patch.

(iv) in 1995 she underwent acupuncture therapy.

3. Particulars with Respect to Paragraph 12 of the Amended Statement of Claim

Paragraph 12, Amended Statement of Claim:

She has been told by her doctors to quit smoking on numerous occasions and has been unsuccessful at each attempt.

A. Lori Carwardine was advised to stop smoking:

(i) in 1986, by her lung surgeon following a lung collapse, and lung surgery.

(ii) between approximately 1986 and 1990, by a general practitioner.

(iii) between approximately 1988 and 1996, by another general practitioner.

(iv) in 1989, before and after further lung surgery by another lung surgeon, and again in 1992, and 1995, by this surgeon.

(v) in 1991, by an ear specialist.

(vi) in 1991, by a gastroenterologist/internal medicine specialist.

(vii) in 1992 or 1993, by an ear, nose and throat specialist.

(viii) in 1994, by a rheumatologist.

(ix) in 1995 and 1996, by three other lung specialists, one of whom advised double patching because of Ms.Carwardine's heavy addiction.

(x) in 1996, by a cardiologist.

(xi) in 1996, by a general surgeon.

B. Ms. Carwardine has made the following attempts to quit smoking:

(i) between 1986, and 1996, she has attempted, and continues to attempt to quit smoking approximately five times per month by trying to reduce her intake of cigarettes.

(ii) in 1986, following a lung collapse she tried to stop smoking.

(iii) in 1989, prior to lung surgery, she enrolled in a laser therapy program.

(iv) in 1989 or 1990, Ms. Carwardine tried nicotine chewing gum.

(v) in 1996, she used both a single and 'double' transdermal nicotine patch.

4.Particulars with Respect to Paragraph 13 of the Amended Statement of Claim

Paragraph 13, Amended Statement of Claim:

He has been told by his treating physicians to stop smoking. He has attempted to stop smoking on numerous occasions but has been unsuccessful at each attempt.

A. Russell Hyduk was advised to stop smoking:

(i) on numerous occasions by a general practitioner since approximately 1976.

(ii) in 1977, by an allergist.

(iii) in 1985, by a surgeon.

(iv) on several occasions between 1985 and 1994 by another general practitioner.

(v) in 1988, by a physician practising internal medicine.

(vi) in 1988, and 1994 by a cardiopulmonary specialist.

(vii) in 1988, and 1990, by a physician specializing in neurology and internal medicine.

(viii) in 1989, by a cardiologist.

(ix) in 1989, by another physician practising internal medicine.

(x) in 1994 by a diabetes specialist.

(xi) in 1994, by a respirologist.

(xii) several times in 1994 and 1995, by another respirologist.

B. Mr. Hyduk has made the following attempts to quit smoking:

(i) since at least 1976, he has tried, and continues to try to quit smoking approximately once per month, by resolving to stop smoking, and trying to fight the physical craving to light up.

(ii) in approximately 1982 Mr. Hyduk underwent hypnotherapy.

(iii) in 1985, Mr. Hyduk was prescribed Nicorette chewing gum.

(iv) in 1988, after having suffered a heart attack, Mr. Hyduk tried to stop smoking.

(v) in 1992, as soon as it became available in Canada, he enquired about the transdermal nicotine patch, but was advised at this time that he should not use it because of his heart condition.

(vi) in 1993, he tried using a computerized 'personal smoking monitor'.

(vii) in 1994, he underwent hypnotherapy.

5.Particulars with Respect to Paragraph 24 of the Amended Statement of Claim

Paragraph 24, Amended Statement of Claim:

At all relevant times, the defendants concealed from the general public their own research establishing the addictive nature and effects of nicotine and further, they misinformed the public regarding that research.

Paragraph 1, Defendants' Supplementary Demand for Particulars

Paragraph 22: particulars from each named plaintiff about what "misinformation" each pleads was relayed to him/her about research conducted by [defendant].

Page 8, Order of Master Peppiatt, Dated April 12, 1996

The defendants seek to know in what way is alleged that they misinformed the public.

It is quite obvious that there is going to be a mass of material on this subject dealing with advertising, submissions to various legislative bodies, public statements and possibly more subtle forms of persuasion. It is not the function of the statement of claim to set out all the details of this. ...

The plaintiffs are to deliver particulars of what it is alleged that the defendants [sic] research established, what the defendants said, or omitted to say, which amounted to misinformation and the means by which they communicated this; e.g. press releases, advertisements, publication of scientific studies, submissions to government parties, etc.

A. The defendants' research, as that term is used herein, includes:

(i) studies, surveys, conferences, proceedings, reports, inquiries, reviews, summaries, minutes, diaries, diagrams, recordings, logs, compilations, computations, databases, instructions, analyses, investigations, prototypes, models, and information from whatever source, whether or not channelled through the defendants' internal, or external legal advisors;

(ii) marketing, behavioural, statistical, polling, epidemiological, human and animal biological, chemical and product development research carried out by the defendants in company research facilities, whether or not channelled through the defendants' internal, or external legal advisors;

(iii) research carried out at the request of the defendants by other individuals or entities, including, but not limited to affiliate, associate, parent, and controlling companies; tobacco industry associations and groups (whether incorporated or not); other industry participants, including suppliers; societies; scientific, health, medical, behavioural, marketing and other research institutes and entities; non-profit organizations; and various types of consulting companies; whether or not channelled through the defendants' internal, or external legal advisors;

(iv) research carried out by associate, affiliate, parent and controlling companies; as well as by individuals and entities for affiliate, associate, parent or controlling companies; or other industry participants, including suppliers; whether or not channelled through the defendants' internal, or external legal advisors.

B. What it is alleged that the defendants' research established

(i) The defendants' research established:

(a) That nicotine is a psychoactive drug that affects brain structures, functions, and waves; skeletal muscles; the cardiovascular and central nervous system (CNS); peripheral organs including the lungs; endocrine functions; intestinal action; and other systems throughout the body.

(b) That nicotine affects behaviour, mood, and produces arousal-increasing and arousal reducing effects; that is, it can stimulate, arouse, and/or relax or depress consumers' CNS.

(c) That nicotine is the principal, active pharmacological agent most smokers seek.

(d) That it is capable of eliciting a range of pharmacological, biochemical, and physiological responses, and is responsible for smoker 'satisfaction' (i.e., the whole-body response to nicotine), the physiological sensation or signal of 'impact', 'the kick', 'strength', 'the goodies', and other similar descriptive terms commonly employed by the defendants, their parent, controlling, associate, and affiliate companies, and agents.

(e) That they are primarily in the business of selling nicotine, an addictive drug, and that their business is analogous to the pharmaceutical sector.

(f) That cigarette products are the mere vehicle for drug administration, or the 'dose dispenser' for nicotine.

(g) That cigarettes are similar, but superior to other nicotine delivery products.

(h) That nicotine is primarily absorbed through the lungs.Inhalation is essential for the provision of 'satisfaction' to the smoker, that is, the normal functioning of a cigarette.

(i) That inhalation is unrelated to 'flavour', and is only important to facilitate nicotine absorption into the blood stream in the manner that is most effective to produce the fastest response in the brain and body.

(j) That nicotine is pharmacologically addictive, that is, nicotine is a highly 'addictive' or 'dependence-producing' substance.

(k) That most consumers will persistently, compulsively, and repetitively inhale psychoactive tobacco smoke despite a strong desire to quit (due to evidence of physical and emotional harm to the user, and/or an extreme fear of disease and death, and/or social pressure, and other motivations to quit).

(l) That the vast majority of smokers of the defendants' products who try to quit are unsuccessful, despite repeated attempts.

(m) That most smokers try to quit.

(n) That the vast majority of smokers who try to reduce their cigarette intake fail in their attempts.

(o) That once addicted, smokers are no longer making an 'adult', and 'informed' choice to continue.

(p) That most smokers experience recurrent cravings for cigarette smoke (i.e, the drug nicotine) during periods of abstinence.

(q) That smokers attempting to quit or reduce cigarette smoke (nicotine) intake suffer withdrawal syndrome (not unlike symptoms observed upon withdrawal from other habituating pharmacological agents) including all or some of the following symptoms: decreased heart rate, decreased arousal, central nervous system changes, decreased blood pressure, insomnia, disrupted sleep patterns, weight increase, impatience, headaches, nausea, vomiting, restlessness, inability to concentrate or difficulty in focussing, anxiety, feelings of frustration, aggression, helplessness, irritability, sweating, gastrointestinal changes, and other mood changes.

(r) That the vast majority of users smoke daily, and have their first cigarette shortly after waking, the point at which their bodily level of nicotine has dropped from its constant daytime level. That this first cigarette restores the smoker's nicotine level to its daytime level.

(s) That adolescents soon become addicted to nicotine. That adolescents soon regret ever having started for health reasons and because they feel unable to stop. That adolescent smokers, the overwhelming majority of the defendants' new recruits, do not know, during the 'starter' or 'experimentation' stages that they will become addicted to cigarettes.

(t) That the desire to quit smoking among adolescents occurs at an earlier age than it once did, and that once addiction does take place, it becomes necessary for the young smoker to make peace with the hazard. That this can be neutralized by a wide range of rationalizations. That a variety of reassuring marketing strategies can be employed to achieve reassurance among young, addicted smokers.

(u) That the nicotine requirements of adolescents play a secondary role initially, so that the advertising of 'strength' qualities should be down-played with respect to youth-oriented brands in order to attract youngsters. Instead, youth brands should focus on themes such as peer acceptance and independence, imagery less important to older, addicted smokers (who are more concerned with product performance).

(v) That it is necessary to reassure smokers, most of whom are concerned about their health, and the hazardous activity over which they feel they have little control, that the product is, among other things, pleasant, relaxing, compatible with good health, normal activities, particularly sports and physically challenging recreational activities, and is socially acceptable.This is especially true in light of increased social pressures to quit.

(w) That nicotine is a 'positive reinforcer' (i.e., that it induces continued, compulsive use) in laboratory animals, including rats and monkeys; these animals will self-administer nicotine, for example, by pressing a lever to give themselves repeated doses of nicotine.

(x) That most consumers continue to smoke not because of a weak personality or 'weak will', or deficient personal trait -- notions that many non-smokers and, indeed, smokers believe to be true -- but largely because of the pharmacologically reinforcing effects of nicotine, a powerfully addicting substance.

(y) That adult smokers are very worried about the effect smoking is having, or will ultimately have, on their health, and their inability to stop smoking. That they are receptive to marketing techniques that can reassure them about their smoking habit.

(z) That the marketing of 'light' brands, and brand extensions that maintain minimum nicotine levels to ensure pharmacological 'satisfaction', but which are marketed in a way that facilitates, allows, or encourages consumers to perceive that these are 'safer', benign, merely a self-indulgent means of relaxation, an intelligent, rational alternative to the brand and product they would like to give up (i.e., quit), can retain would-be quitters. That most smokers of such brands are would-be quitters. That the continued development of 'ultra' low tar and nicotine brand extensions and brands is vital to retaining would-be quitters, a large proportion of the defendants' market. That such brand extensions allow smokers with extreme health concerns to smoke under duress, and help relieve guilt feelings about their inability to quit, their health and that of those around them.

(aa) That nicotine delivered by cigarettes is transmitted to the brain within seconds, and that various product modifications can enhance the pharmacological effects sought by smokers.

(bb) That in order to maintain minimum, pharmacologically active doses of nicotine in their cigarettes -- that is to facilitate or maintain the smoker's addiction -- the defendants must precisely control nicotine levels. That this is particularly important, when attempts are made to modify the product so as to reduce its ease of delivering 'tar' -- that is, create 'light' and 'ultra light' brands and brand extensions.

(cc) That nicotine levels can be manipulated through various techniques including the blending in of high nicotine tobacco varieties and strains; nicotine and/or chemically-treated, reprocessed tobacco; through cigarette paper and filter modifications; through 'impact-boosting' techniques; as well as the addition of other compounds to tobacco; and adding nicotine to tobacco and cigarette components. That the pH of tobacco smoke affects the bio-availability of nicotine. That these pH levels can be carefully controlled to ensure optimum levels of available nicotine.

(dd) That the form of nicotine in cigarettes is important to its absorption.

(ee) That compounds can be added to tobacco to make inhalation easier, and nicotine absorption more intense than it might be otherwise.

(ff) That casings, which include flavouring agents and/or other compounds such as humectants, help reduce the harshness of cigarette smoke.

(gg) That these smooth out the bitterness of nicotine, especially in high nicotine/low tar blends that would otherwise be unacceptable to consumers.

(hh) That starter smokers, the vast majority of whom are adolescents, optimally require a less harsh smoke than do regular smokers (who rely on harshness or 'impact' as a signal for nicotine content, in order to regulate their intake).

(ii) That products that produce a bland, or 'less irritating' smoke will be more appealing to beginning smokers.

(jj) That 'less irritating' brand extensions, marketed in a manner similar to higher nicotine versions of a brand, would be that much more acceptable among young smokers.

(kk) That lower irritation cigarettes can retain smokers who would otherwise quit.

(ll) That compounds like ammonia can be added to tobacco to boost nicotine bio-availability to the brain, especially in 'light' cigarettes designed to reduce the ease of particulate matter inhalation.

(mm) That compounds, such as acetaldehyde, can be manipulated in combination with nicotine to produce maximal reinforcing effects.

(nn) That nicotine analogues (which mimic the pharmacological effects of nicotine) can be developed and utilized, among other things, to enhance or act as a substitute for nicotine's drug effects on the smoker's CNS.

(oo) That smokers rapidly develop a tolerance to nicotine, and slowly require increasing doses to satisfy their cravings. That starter smokers, the vast majority of whom are adolescents, usually experience, at first, nicotine-related effects such as dizziness, nausea, and vomiting. That these subside as tolerance develops, and where the smoker begins to require a certain level of nicotine intake, which slowly increases (but which may plateau). That if the smoker's currently-required level of nicotine drops, he begins to suffer undesirable physical and emotional effects. That smokers regulate their smoke intake to achieve their bodies' required dosage, in order to maintain a physiological equilibrium.

(pp) That whatever the characteristic of a cigarette as determined by a smoking machine the smoker will adjust his smoking pattern to deliver his own nicotine requirements. That 'light' and 'ultra light' cigarettes do not contain less nicotine than do regular cigarettes.

(qq) That smokers of unfiltered cigarettes who switch to filtered cigarettes will modify their smoking behaviour to maintain adequate nicotine intake. Likewise, smokers of 'regular' versions of brands who switch to brands, or brand extensions promoted by the defendants as 'light', 'extra light' or 'ultra light' compensate for the draw diminution of nicotine caused by filters, air vents, perforations, paper wrappings, and other technical modifications, by puffing more frequently, inhaling more deeply, inhaling larger volumes of smoke, smoking such cigarettes to a shorter butt length, and increasing their cigarette consumption. That smokers block (with their mouths and fingers) nearly invisible, laser-cut air vents and/or perforations (often placed where the filter and tipping paper meet the cigarette paper which surrounds the tobacco rod) in order to extract their required dose of nicotine from each 'light' cigarette. And that, as a result, smokers who switch to 'light' cigarettes inhale the same or higher levels of 'tar', nicotine and other harmful chemicals as do smokers of 'regular' products.

(rr) That smokers are confused and misinformed about the actual amount of nicotine and 'tar' ingested when smoking regular, 'light', and non-factory-made cigarettes (i.e, roll-your own, cigarette kit products, and 'cigarettes' with tobacco paper wrapping).

(ss) That cigarettes can be designed to facilitate -- indeed encourage -- smoker compensation, that is, designed to ensure that smokers are able to extract a greater amount of nicotine from their cigarettes than would otherwise be indicated by the amount of nicotine the smoking machine extracts, and which is reported by defendants to consumers and regulators. That this can be achieved through various techniques, including increasing the moisture content of the rod, shortening the cigarette rod, altering the paper burn rate, through additives, perforated tipping paper, acid filters, and the addition of sugars.

(tt) That by increasing the level of smoke irritation, through various means, companies could discourage smokers from inhaling deeply and for long periods.

(uu) That nicotine delivery devices, including low-smoke cigarettes, and devices that heat instead of burn tobacco can be developed so as to reduce or eliminate the inhalation of disease-causing 'tars' and other chemicals, yet deliver doses of nicotine required by addicted smokers.

(vv) That nicotine is toxic to the cardiovascular and other bodily systems.

C. What the defendants said which amounted to misinformation

(i) The defendants misrepresented their research by explicitly or implicitly claiming or intimating that:

(a) Cigarettes are not nicotine delivery devices.

(b) Nicotine is not a drug or 'psychoactive' drug, nor a powerful physiological and pharmacological agent.

(c) Nicotine is not harmful.

(d) They merely provide smokers with what smokers really desire, as opposed to what the defendants' research indicates that vulnerable, uninformed, and misinformed segments of the market would respond to, or be reassured by.

(e) They provide smokers with the latest in product innovation when in fact they do not bring forward less toxic products that are technically feasible.

(f) They do not target ex-smokers, non-smokers, or teenagers in marketing, advertising, promotional, and advocacy activities.

(g) A cigarette should be used without inhaling, when they knew the very purpose of smoking -- that is, obtaining the pharmacological 'kick' of nicotine -- could only be achieved through inhaling.

(h) The product is designed merely to deliver good 'taste' and 'flavour', as opposed to a drug -- nicotine.

(i) Cigarettes and nicotine are not addictive.

(j) Smoking is a mere 'habit', and this 'habit' cannot be compared in any way to the use of other habituating drugs.

(k) Smoking is a lifestyle choice akin to eating candies, fried foods, etc., and is something that can be adopted or dropped at will, with minor lifestyle modification or will-power.

(l) Smoking is a mere adult 'custom', when in fact it is an addiction that starts, in the overwhelming majority of smokers, in adolescence.

(m) Many people easily give up smoking, when in fact most are unable to.

(n) Giving up smoking is not as difficult as health groups, regulators, elected officials, and others suggest it is.

(o) Cigarettes do not cause any known diseases.

(p) It is common for people to smoke occasionally without addiction, when in fact most smokers are addicted, and are daily smokers of cigarettes spaced over the day to ensure a constant bodily level of nicotine.

(q) Smoking is consistent with a healthy lifestyle.

(r) Smokers make an adult and informed choice to continue to smoke.

(s) Smokers enjoy, support, and desire to continue using the defendants' products.

(t) Smokers oppose restricting tobacco.

(u) The defendants are not interested in the adolescent market, and do not carry out marketing or research activities on adolescents.

(v) Smokers smoke for mere 'taste', 'flavour' and 'pleasure' (as opposed to smoking for pharmacological effects, to restore the addicted body's required dose level of nicotine to maintain its feeling of equilibrium, and prevent the onset of withdrawal symptoms).

(w) Consumers are fully aware of the risks of cigarette use, and that providing more, differently presented, or more prominent information to consumers would not assist them in making an

informed choice about cigarette products.

(x) Reported nicotine and tar levels accurately, meaningfully, and adequately inform consumers about the amounts of nicotine and tar they could be consuming.

(y) 'Light' cigarettes and brand extensions are 'safer', less toxic, or have fewer toxic constituents than regular and regular versions of brands.

(z) Switching to 'light' brands is an intelligent choice, or alternative to quitting.

(aa) 'Light' brands contain less nicotine and tar than 'regular' brands or versions of a brand, and are compatible with good health, fitness, and active recreational activities.

(bb) 'Light' brands are merely benign, self-indulgent, rewarding, and relaxing alternatives to regular versions of brands.

(cc) Cigarette manufacturers do not add additives to cigarette tobacco or cigarette components, nor manipulate nicotine levels by adding nicotine or more potent nicotine blends, to enhance smokers' access to nicotine or enhance ease of smoking.

(dd) Cigarette manufacturers blend for taste, not nicotine levels to ensure minimal dose levels in smokers.

(ee) Roll-your-own cigarette tobacco is equivalent in nicotine and tar to factory-made versions of these brands.

(ff) 'Light' and 'ultra light' roll-your-own cigarette tobacco is equivalent to 'light' versions of the factory-made brand.

(gg) Scientists do not know why some people smoke and others do not.

(hh) Scientists do not know why some smokers develop certain diseases and conditions at a greater rate than do non-smokers.

(ii) Certain brands of the defendants are lighter than competing brands of defendants (when, in fact, defendants' research indicates that the former brand contains similar or higher amounts of nicotine and tar compared to the competing brand).

(jj) Defendant's cigarette brands are to be associated with freedom, independence and pleasure (when in fact the branded product ultimately creates dependence and suffering (withdrawal syndrome and/or the onset of disease) in the user).

D. What the defendants omitted to say, which amounted to misinformation

(i) The defendants misrepresented their research by failing to disclose that:

(a) Nicotine is a psychoactive drug that affects numerous bodily systems, and functions (as set out above).

(b) Nicotine, as opposed to 'taste', is the principal reason that most smokers continue to consume cigarettes.

(c) They are in the business of selling nicotine, a psychoactive drug, and that cigarette products are the mere vehicle for its delivery.

(d) Inhalation is essential for normal product use, that is the provision of 'satisfaction' to the smoker, and that the vast majority of smokers are unable to avoid inhaling.

(e) Nicotine is pharmacologically addictive, and is a positive reinforcer in humans and other animals. Once addicted, the smoker has little control over his habit, and cannot be said to be exercising his free will or making an adult and informed choice.

(f) The vast majority of smokers are unable to stop, even after the user has developed a serious tobacco disease or condition.

(g) Most smokers deprived of nicotine will begin to suffer unpleasant physical and emotional symptoms, and many will experience weight gain.

(h) Most smokers who try to abstain from smoking will suffer various, unpleasant withdrawal symptoms.

(i) Addicted smokers have to maintain a constant level of nicotine in their bodies to maintain equilibrium.

(j) Adolescents that experiment with, and continue to smoke cigarettes will likely become addicted, and once a certain dependence develops they will require increasing doses of nicotine to prevent withdrawal symptoms, and to maintain a equilibrium.

(k) Their marketing techniques are meant to reassure smokers about their smoking in an attempt to encourage them to use, or continue using certain brands.

(l) They employ technologies to make inhalation easier and the effects of nicotine more readily and intensely experienced.

(m) Product use is not compatible with good health, well being, or physical fitness.

(n) Cigarettes and nicotine are toxic.

(o) Cigarettes cause diseases, and that the presence of nicotine will prevent most user from abandoning the product.

(p) Continued smoking, despite a desire to quit, is not a sign of personal weakness, a weak will, personality flaw, etc., but is rather the result, principally, of pharmacological addiction.

(q) 'Light' brands contain the same amount of nicotine as regular brands.

(r) Smokers who have switched to 'light' brands will likely modify their smoking behaviour (i.e., compensate) to extract their requisite dose of nicotine, thus achieving no health benefit from switching.

(s) 'Light' brands are not an intelligent alternative to quitting, and contain the same amount of tar and nicotine as 'regular' cigarette brands and versions of brands.

(t) They use various techniques to ensure optimum nicotine levels in their brands, and blend for nicotine not flavour.

(u) They use additives to ensure, among other things, adequate and optimal nicotine delivery.

(v) They design products in such a manner as to reduce the irritating effects of nicotine, to ensure easier and deeper inhalation.

(w) Smokers develop a tolerance to nicotine and must slowly increase their daily nicotine intake in order to maintain an equilibrium, and prevent the onset of withdrawal symptoms.

(x) Smokers consciously and unconsciously block air vents and perforations in cigarettes and thus inhale levels of nicotine and 'tar' equivalent, or greater to, those found in brands or brand extension promoted as having higher nicotine and 'tar' levels.

(y) They incorporate into the design of their cigarettes nearly invisible air vents and perforations that smokers will likely block.

(z) Reported 'tar' and nicotine levels do not reflect levels of these substances that are inhaled by human smokers.

(aa) A simple reporting method could be used to advise smokers, with reasonable accuracy, of the levels of 'tar' and nicotine actually ingested.

(bb) That other nicotine delivery devices with reduced risks to health have been developed, and could be made available to consumers.

E. The means by which the defendants communicated this misinformation

(i) Defendants misrepresented the results of their research, or failed to communicate the results of their research:

(a) In cigarette brand advertising, and related marketing and promotional materials in all media, including those for radio, television, billboards, bus shelters, posters, displays, signs, clocks, various electronic media, and all print media. Advertising includes news releases, press kits, contest materials, coupons, brand merchandising materials, sampling items and activities, discounting and other marketing activities.

(b) On cigarette packaging, including carton wrappings.

(c) At the sites of cigarette brand, and indirect 'shell company' brand-promoting activities, including cultural, sporting and other event and activity sponsorships, and in all promotional materials prepared in relation to such activities, including news releases, press kits, contests, coupons, brand merchandising materials, sampling items and activity materials, discounting and other marketing activities.

(d) In paid advocacy, and 'information in the public interest' advertising in newspapers, magazines, on radio and television, and in other media, paid for in whole or in part by the defendants, directly, or indirectly through another entity or individual;

(e) In advocacy or information pamphlets, articles, newsletters, books, and magazines, press and information kits of various kinds, including those related to planned or actual private and government policies, initiatives, and legislation, and in relation to tobacco and health related activities in the private sector, paid for in whole or in part by the defendants, directly, or indirectly through another entity or individual;

(f) In industry-funded, defendant-funded; affiliate, associate, parent or controlling company-funded research results presented to the public, governments, news and information media, and other organizations, as objective and independent when in fact these results were not.

(g) In media interviews, correspondence and other materials prepared on behalf of, and discussions, speeches, and presentations given by company officials, tobacco industry spokespersons acting on

behalf of defendants directly or indirectly (such as CTMC lobbyists, and public relations experts), to members of the public, elected officials, government bureaucrats, medical, health and scientific organizations and bodies, conferences, columnists and journalists, writers, media editors, publishers, and scientists.

(h) Via company, or tobacco industry spokespersons who did not represent themselves as such at the time, or who held themselves out as 'independent' of the defendants' interests, but who were in fact acting as agents for the defendants, having received money or money's worth from the defendants, directly or indirectly. These individuals communicated to, and corresponded with, and provided information to the public, members of the news and information media, elected officials, government officials, members of scientific and health promotion and research entities, as well as members of the general public.

6.Particulars with Respect to Paragraph 25 of the Amended Statement of Claim

Paragraph 25, Amended Statement of Claim:

The defendants have denied the validity of the scientific and medical research carried out by governmental and private agencies which establishes the addictive nature of nicotine and its connection to smoking behaviour.

Paragraph 3, Defendants' Supplementary Demand for Particulars

Paragraphs 23, ... : particulars from each named plaintiff about his/her knowledge of the "scientific and medical research carried out by governmental and private agencies", the research of "others", and the dates upon when each named plaintiff obtained such knowledge.

Page 9, Order of Master Peppiatt, Dated April 12, 1996

I assume that the plaintiffs mean to allege that it was wrongful to deny the validity of such studies either because the defendants knew that they were valid or because they were negligent in not realizing and recognizing their validity.

The plaintiffs must deliver particulars as to why it was a wrongful act to deny such validity and also give particulars as to how this was done in the same terms as those ordered with respect to paragraph 24.

It is not necessary at this stage to distinguish between the defendants for the reasons which I gave in dealing with paragraphs 10 to 13.

A. Why it was a wrongful act to deny the validity of the scientific and medical research carried out by governmental and private agencies which establishes the addictive nature of nicotine and its connection to smoking behaviour.

(i) The defendants were wrongful in denying the validity of the scientific and medical research carried out by governmental and private agencies which establishes the addictive nature of nicotine and its connection to smoking behaviour because the defendants on their own, or through their parent, controlling, associate, and affiliate companies, and agents knew such studies were valid, or were negligent by not investigating, testing, realizing and recognizing their validity.

(ii) More specifically, the defendants were wrong in denying this research because:

(a) The defendants established through their own research, and/or research that was available to them that nicotine is addictive and pharmacologically active.

(b) Corporate officers, and researchers of the defendants privately recognized, in meetings, presentations, speeches, letters, memoranda, and other communications that nicotine is addictive and pharmacologically active.

(c) Corporate officers, as well as researchers of, and consultants to parent, controlling, associate or affiliate companies of the defendants privately recognized in meetings, presentations, letters, memoranda, and other communications that nicotine is addictive and pharmacologically active, and by reason thereof, the defendants should have known that nicotine is addictive and pharmacologically active.

(d) Corporate officers, and researchers of the defendants were informed by representatives of parent, controlling, associate, and affiliate companies, through letters, memoranda, reports, conversations, and other means, that nicotine is addictive and pharmacologically active, and by reason thereof, the defendants should have known that nicotine is addictive and pharmacologically active.

(e) Corporate officers, and researchers of the defendants were informed by scientific, behavioural, marketing, and product development consultants that nicotine is addictive and pharmacologically active, and by reason thereof, the defendants should have known that nicotine is addictive and pharmacologically active.

(f) Corporate officers and researchers participated in research activities, meetings, conferences, workshops, and exchanges which provided evidence that nicotine is addictive and pharmacologically active, and by reason thereof, the defendants should have known that nicotine is addictive and pharmacologically active.

(g) Corporate officers, and researchers of the defendants were informed by health organizations, physicians, independent scientists from governmental departments, universities and research institutes that nicotine is addictive and pharmacologically active, and by reason thereof, the defendants should have known that nicotine is addictive and pharmacologically active.

(h) The defendants had access to state-of-the art peer-reviewed studies, reviews, editorials, and articles in scientific, medical and health journals, conference proceedings, monographs, and various reports, as well as leading experts in the field of addiction medicine, biochemistry, and behavioural research, the research and results of which establish that nicotine is addictive and pharmacologically active. By reason thereof, the defendants should have known and accepted that nicotine is addictive and pharmacologically active.

B. How this was done in the same terms as those ordered with respect to paragraph 24

(i) The defendants publicly denied the validity of the scientific and medical research carried out by governmental and private agencies which establishes the addictive nature of nicotine and its connection to smoking behaviour through:

(a) Cigarette brand packaging, wrappings, advertising, and related marketing and promotional materials which were designed, or which reasonably should have been recognized as having the ability to diminish, neutralize, confuse, undermine, bring into contempt or question the notion that cigarettes and/or nicotine is addictive and pharmacologically active.

(b) Cigarette health warning, and toxic constituent messages on packaging, wrappings, and in advertising designed, or which reasonably should have been recognized as having the ability to diminish, neutralize, confuse, undermine, bring into contempt or question the notion that cigarettes and/or nicotine is addictive and pharmacologically active, by reason of, among other things, its choice of message, placement, size, font, and colour, and contrast.

(c) Cigarette brand, and indirect 'shell company' brand-promoting activities and events, and related materials designed, or which reasonably should have been recognized as having the ability to diminish, neutralize, confuse, undermine, bring into contempt or question the notion that cigarettes and/or nicotine is addictive and pharmacologically active.

(d) Paid advocacy, and 'information in the public interest' advertising, advocacy pamphlets, books, articles, magazines, press and information kits of various kinds, designed, or which reasonably should have been recognized as having the ability to diminish, neutralize, confuse, undermine, bring into contempt or question the notion that cigarettes and/or nicotine is addictive and pharmacologically active.

(e) Defendant-funded, or affiliate, associate, parent or controlling company-funded polling, scientific, behavioural, and other research, the results of which were presented to the public, governments, news and information media, and other organizations, that was designed, or which reasonably should have been recognized as having the ability to diminish, neutralize, confuse, undermine, bring into contempt or question the notion that cigarettes and/or nicotine is addictive and pharmacologically active.

(f) Media interviews, correspondence and other materials prepared on behalf of, and discussions, speeches, presentations given by company officials, tobacco industry spokespersons acting on behalf of defendants directly or indirectly to members of the general public, elected officials, government bureaucrats, medical, health and scientific organizations and bodies, conferences, columnists and journalists, writers, media editors, publishers, and scientists, designed, or which reasonably should have been recognized as having the ability to diminish, neutralize, confuse, undermine, bring into contempt or question the notion that cigarettes and/or nicotine is addictive and pharmacologically active.

(g) Statements, and written materials by company, or tobacco industry spokespersons including lobbyists, public relations consultants, scientists, academics, writers, journalists and others receiving money or money's worth -- directly or indirectly -- designed, or which reasonably should have been recognized as having the ability to diminish, neutralize, confuse, undermine, bring into contempt or question the notion that cigarettes and/or nicotine is addictive and pharmacologically active.

Notes:

1. Tolerance is produced by a substance when the effects of the substance, at a given dose, become less intense over time, or when an increasing dose over time is necessary to cause an effect or response of a specified intensity.

2. The technique used by the defendants to obtain nicotine level information to be presented to consumers. This is the only means by which nicotine and tar information is presented to consumers.