by David Lee

The modern American cigarette is to tobacco what crack is to cocaine.

We’ve all heard that crack can addict on the first try. We’ve all been disgusted by the pregnant moms who prostitute themselves for another hit of this mysterious substance. But I’ve wondered what made crack so potent to overpower a mother’s maternal instincts to protect her unborn child, and I’ve doubted that cigarettes really could ever be compared to a substance that leads one to kill, rob, or prostitute. After all, who’s been murdered for a Marlboro?

But still the statistics tell us that more people can quit cocaine, crack or heroin than nicotine. Most smokers, when asked, say they wish they had never started.

I’ve also struggled with the tobacco companies’ arguments that their product is not addictive because fifty million Americans have quit and because one million Americans quit each year. But, just as they say their products are only like gummy bears, they recently maintain that their use of ammonia, a primary ingredient in urine, is only to improve a cigarette’s taste.¹ Rat poison was also used to improve taste in pipe tobacco.² The tobacco companies have never officially disclosed their addition of ammonia, which has only come to light in the recent cigarette litigation. It is not a natural constituent of tobacco. The importance of that additive is not fully understand and appreciated by the public and by our decision makers.

For example, I recently met a FDA employed, M.D./Ph.D. at the annual convention for the Society for Research on Nicotine and Tobacco. I asked this imminently qualified gentleman the following: "What does ammonia do?" He did not know and could only state that ammonia is a base. But my question was overheard by Dr. James Pankow, whom I credit with the epiphany that the modern American cigarette is to tobacco what crack is to cocaine.

Dr. Pankow quickly asked that I call him "Jim" and explained that the basis for the comparison between the modern cigarette and crack cocaine is the chemical process of "free basing," which is accomplished by the additive ammonia. This process is used by most tobacco companies³ and was used by Richard Pryor when he accidentally set himself on fire several years ago.

To understand the chemical process, imagine a birthday party balloon held down with a string. This is like the nicotine molecule in its natural state. This molecule is relatively heavy, and does not evaporate easily. The "freed" nicotine molecule is like the "freed" helium balloon whose string has been cut loose.⁴ It ultimately "disassociates" from the tobacco upon heating or burning at lower temperatures and in greater amounts. Although simplified, the following explanation of this chemical process is accurate enough for us lay people. A base picks up hydrogen atoms from other molecules. Hydrogen atoms are what "weigh down" the nicotine or cocaine molecules. Ammonia, a base, has the chemical composition NH3, or one nitrogen atom bound to three hydrogen atoms. When ammonia is added to nicotine, ammonia picks up one additional hydrogen atom from the nicotine molecule and becomes NH4.⁵

The free base process simultaneously matches the PH of the tobacco smoke to the PH of the lungs. Neutral PH is 7.0 which is the PH of water or H2O. PH is the measure of a substance’s relative propensity to take or give away hydrogen atoms. The PH of the lungs is 7.4. (The PH of the mouth is lower or acidic, and thus the reverse process is used for chewing tobacco.) Bioavailability is maximized by matching the PH of the nicotine to the PH of the membranes through which the nicotine must pass before flowing in the bloodstream.⁶

Richard Pryor understood how to apply Dr. Pankow’s balloon analogy. He free based cocaine by mixing cocaine, ammonia and ether (and some water). The ether rises to the top of the mixture, along with the "freed" cocaine. The NH4 stays below in the water. The cocaine and ether are siphoned off with a spoon and should be left to dry. Although ether has characteristics that make it an effective vehicle to separate the freed cocaine, it is also extremely flammable. In Richard Pryor’s haste and inebriation, he failed to allow the ether to evaporate away by itself and instead accidentally lit the ether and himself.⁷

Crack, unlike Richard Pryor’s method of free basing cocaine, uses baking soda (also a base) to accomplish the same chemical end result. We’ve all heard that crack is inexpensive, but why? This is because baking soda is much easier to obtain than ammonia and ether. It’s dangerous because it can be mass produced and consumed without the danger of self-pyrolization. But cigarettes with ammonia have one important "advantage," and therefore danger of addiction, over crack. With crack, the user is at the disadvantage of lighting a pipe upon every inhalation. With freed-based nicotine, the smoker conveniently has freely burning tobacco without need for a pipe. Natural tobacco, including pipe and cigar tobacco, does not stay lit. To accomplish the continuously burning cigarette, the cigarette companies have perfected the burn rates of cigarette paper and even "puff" the tobacco with chemically inert substances such as Freon 11.

The civil liability significance of ammonia cannot be overstated. It is ammonia and thus "free basing" that turns heads at the Department of Justice. It may even have been the decisive point in the industry handing over to Mississippi $170 million in the first of perpetual installments.⁸ It will be interesting to see the eight Liggett group documents that a Florida trial judge ruled must be disclosed under the fraud/crime exception to the attorney-client privilege and without which the state of Florida refuses to settle on otherwise the same terms as Mississippi. The Florida Court of Appeals recently upheld that order to disclose those documents, and thus Florida joined Minnesota and Mississippi in ruling that the lawyers and their tobacco clients were prima facie guilty of fraud and criminal activity.

When ABC News settled the libel suit brought against it for reporting that the tobacco companies add nicotine, it should have consulted the cigarette plaintiffs’ attorneys before paying millions. The tobacco companies don’t need to add nicotine. The taste of nicotine is awful. It burns the throat. When nicotine is handled by the barrel, full toxic waste dress, including respirators, must be worn. Nicotine is used in some countries as a pesticide. It can make one nauseous. Thus, the cigarette companies have no fear of lowering nicotine, as long there’s ammonia.

To what extent does ammonia boost nicotine in the bloodstream? Remember that the FTC method of measuring nicotine only does so in the tobacco, not in the bloodstream where the level is important. Dr. Pankow’s research is found in a study in the August issue of Environmental Science and Technology, a publication of the American Chemical Society, and can show that the amount of nicotine available to a smoker could be increased by 100 times.⁹

The free basing process is also significant, I believe, to understand how Phillip Morris overtook R.J. Reynolds. Marlboro went from an obscure brand 40 years ago to today’s single most "valuable" consumer product appraised at over $40 billion. Marlboro has particularly high "brand loyalty." R.J. Reynolds, which used to have over 50 percent of the market, now has about 20 percent. A now publicized document written in the early 1970s by RJR researchers suggested that the popularity of Marlboro was attributed to Phillip Morris’ manipulation of nicotine.¹⁰

Another part of the Phillip Morris history is Ron Tamol, a biochemical researcher hired by Phillip Morris in 1950s or 1960s. Mr. Tamol’s handwritten notes used to prepare for a presentation to the head of Phillip Morris state "Determine minimum nicotine drip to hook smoker." (If you saw the NBC News coverage in the spring of 1996 of these personal notes, then you saw my thumb as I held those notes for the camera.) Mr. Tamol’s presence with Phillip Morris coincides with the beginning of the steady rise of Marlboro’s market share.

Between the economic dependence that we as a state have on tobacco farming, the high rate of smoking, and the marriage of tobacco lobbying to backroom political muscle at the highest levels of our state government, Tennessee’s political elite is in state-wide denial of the damage of tobacco. The Centers for Disease Control and Prevention estimated that in 1990 the direct cost to Tennessee caused by smoking was $782 million per year. This number accounts not only for Tenncare costs to treat smoking diseases but also lost wages and lost tax revenues.

The average smoker dies 22 years earlier than the average nonsmoker. Tennessee ranks third in the nation for smoking related cancer deaths at a rate of 442.1 per 100,000 deaths. Tennessee, without coincidence, also ranks third in the nation for smoking prevalence. Lung cancer is the leading cause of cancer in Tennessee and causes 3,800 Tennesseans to die each year.

It has been widely reported in the national press that Tennessee is not one of the states that sued the tobacco companies. Even though our immensely qualified and Harvard-educated attorney general has not brought suit, this does not preclude a suit on behalf of Tennessee taxpayers. Considering his appointment by the elite of a tobacco state, his position is akin to a conflict of interest. Likewise, would not one of our clients allege malpractice against us if we failed to file suit to ensure that the client recovered hundreds of millions of dollars in compensation per year?

Under Tennessee law, the right of a taxpayer to recover, on behalf of the state, public funds utilized under circumstances in which these funds are due to be returned to the state is well established. Plaintiffs can maintain standing in this action, after (1) having made an attempt to have the action brought by the appropriate government official, and (2) showing that the acts of public officials affected a special interest or caused the plaintiffs a loss not a common injury to the public generally. It is necessary that the public official has unreasonably or improperly refused to bring the suit.¹¹ Tennessee’s Medicare suit is not the only such case to be brought by taxpayers. Alabama, Ohio, and recently North Carolina taxpayers brought suit. San Francisco was the first city to sue. Even trade unions have brought suit. Thus on May 8, 1997, or six weeks before the settlement, J.D. Lee and I filed such a taxpayer or "medicare" action on behalf of Tennessee taxpayers.

But such class actions brought by third parties with their "top-down" or statistical view of the damages of smoking are much different from the individual smoker looking up at the tobacco giant and crying "it’s your fault." The giant has crushed over 300 meager individuals with the classic "personal responsibility" argument.

The first individual case was Cooper v. RJ Reynolds in 1954. Mr. Cooper died of lung cancer. His wife alleged the RJ Reynolds representations lead to Mr. Cooper’s continued smoking. Those representations contained in mass advertisements in the 1940s and 1950s were 1) "20,000 Doctors say that ‘Camel’ Cigarettes are Healthful" and 2) "’Camel’ Cigarettes are Harmless to the Respiratory System."¹²

The industry’s win record on individual cases continued until it faced an easy going, asbestosis defense lawyer turned tobacco plaintiff lawyer by the name of Woody Wilner. His recent experience in Florida offers hope for the Tennessee trial lawyer. In the fall of 1996 he won $750,000 for Mr. Grady Carter who had lung cancer caused by cigarettes. The trial lasted a brief two weeks which suggests that simplicity and modesty wins. No punitive damages were claimed. Because he had made a offer of judgment for $50,000 (Florida’s rule is similar to Tennessee’s new Rule 68 that allows a plaintiff to make such an offer), the trial court has granted Mr. Wilner another $1.7 million for fees and expenses.

Ammonia is important for another reason. The Restatement of Torts where it discusses tobacco makes the distinction between good tobacco and bad tobacco. I wonder how Prosser would view cigarettes that have freon and ammonia and that are marketed to children. Ninety percent of current smokers began before they were 18, or old enough to be able to appreciate the danger.

Do the cigarette companies have a common law duty to reduce that danger and make their products as safe as they can? There is a former researcher who pinpointed what in cigarette smoke caused heart disease and developed a means to neutralize that constituent. His research was silenced because making a "safer" cigarette meant admitting that cigarettes were dangerous.

The tobacco companies were the original financial backers of the "tort-deform" movement and are the mothers of all tortfeasors. They were the first to finance lawyer bashing. They have always had the most to lose in a courtroom, the most to hide from a jury, and the most money to spend on "public education." They have been the principal enemy of the jury system.

In a Wall Street Journal article published before the settlement, the trial lawyers were praised. This article said that whatever bad the public may say about the trial lawyers, all must agree that only the trial lawyers were able to bring the tobacco companies to the negotiating table; not the politicians, the health groups, nor the federal government. Whatever your view of the settlement, all must admit that the tobacco culture will never be the same.

Endnotes

1 This article is reprinted with permission of the Tennessee Trial Lawyers Association and can be found at 17(4) TENN. TRIAL LAW. 10-12 (Winter 1998).
2 N.Y. TIMES, July 30, 1997.
3 See the Wigand deposition.
4 Jeffrey Wigand’s deposition, November 29, 1995. See http:\\www.gate.net/~jcannon/documents/wigand.html, or search from www.tobacco.org/. See also John Schwartz, Ammonia Amplifies Nicotine, Study Confirms, WASH. POST, July 20, 1997, at A4; Barry Meier, Ammonia Linked to a Type of Nicotine, N.Y. TIMES July 30, 1997, at A18; and see generally the research of Dr. James Pankow, Oregon Graduate Institute of Science and Technology.
5 Dr. James Pankow.
6 Credit must also be given to my wife, Lubov Mikalovna Kudraseva Lee, and her chemistry professors at the University of Tennessee for their independent confirmation and explanation of the nicotine molecule before and after ammoniation.
7 This is according to another imminent M.D./Ph.D. whom I met at the SRNT symposium and whose identity I prefer to remain anonymous.
8 Dr. James Pankow.
9 The settlement is worth over $3 billion in the first 25 years but goes on forever.
10 See also Schwartz and Meier, supra note 4.
11 Barry Meier, Politics; Minnesota Official Invites Congressional Scrutiny of Tobacco Industry, N.Y. TIMES, July 28, 1997.
12 See Bennett v. Stutts, 521 S.W.2d 575 (Tenn. 1975).
13 See http://www.tobacco.org/documents/560524cooper.html.

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