Corporate Political Activity Agents: Understanding How Firms Use Expert Consultants to Transmit Information to Regulators of Risky Products

Lisa Margaret Buffinton (ANU UID: U4699563)

Corporate political activity agents: Understanding how firms use expert consultants to transmit information to regulators of risky products

Student: Lisa Margaret Buffinton

February 2019

A thesis submitted for the degree of Master of Philosophy (Regulation & Governance) of the Australian National University

Declaration

I declare that this thesis is entirely my own work and to the best of my knowledge contains no written material by another person, except as directly referred to in the text. The word count for this thesis is 51,688. (This figure is exclusive of footnotes, tables, figures, maps, bibliographies and appendices).

Lisa Buffinton Date: 24 February 2019

Acknowledgements

To my family and friends. Thank you for your encouragement. A special thanks to Joshua Sidgwick, Anna Bounds and Tom Lyons for reviewing my manuscript. This work is dedicated to my grandma, Peg White: An inspiration in my life who sought knowledge, truth and mutual understanding for the benefit of all.

To Sandra Jones, Karen Smith, Chris Morrison, and NSW Bureau of Crime Statistics and Research. Your research on the mechanics of alcohol harms triggered critical industry responses, which are the subject of this thesis. I hope these experiences embolden you to continue your important work.

To my school. I am most grateful for the generosity of time, insights and spirit of my supervisors (Prof. Sharon Friel, Dr. Melanie Pescud, Dr. Timothy Legrand), teachers (Dr. Miranda Forsyth, Dr. Kate Henne, Prof. Veronica Taylor, Dr. Jeroen van der Heijden, Prof. Neil Gunningham, Prof. John Braithwaite) and mentors (Prof. Valerie Braithwaite, Dr. Christian Downie, Dr. Ibi Losoncz, Dr. Anthea Roberts, Dr. Ashley Schram, Dr. Belinda Townsend, and Kirsty Anantharajah) at the ANU School of Regulation and Global Governance. It is an honour to learn from and add to the School’s catalogue of knowledge. The experience of this Master’s degree has enriched me immeasurably.

To Narelle Robertson. I am most grateful for your generous advice and resources that kick- started the maturation of my project into an academic thesis.

To the Foundation for Alcohol Research and Education (FARE). I am most grateful to FARE for providing me with copies of the freedom of information-released data (requested by FARE) that underpins this thesis.

Abstract

This thesis contributes to understanding how firms use expert consultants to transmit information to regulators of risky products. This topic has been extensively investigated regarding the tobacco industry but is not as well-understood in relation to the alcohol industry. Alcohol shares similarities with tobacco as a legal, widely-consumed yet disease-bearing product that is regulated to influence the incidence of harms. Submissions to Australian government regulators reveal that liquor retailers have used expert consultants to resist harm prevention policies that restrict alcohol availability and promotion.

Three analyses were performed to explore this topic. First, an extensive literature review examines current knowledge on the corporate political activities (CPA) of industries who are specially regulated to mitigate health risks. Second, a taxonomy was developed to define how the tobacco industry used expert consultants for CPA purposes. Third, this taxonomy was applied to three cases where an Australian alcohol retailer used CPA expert consultants.

This thesis found that firms use expert consultants as CPA agents when there is an “information threat” that may pose an existential threat to the firm. CPA expert consultants were used to transmit information in a manner that achieves special perlocutionary speech effects in the policy arena. This thesis found 23 characteristics of how expert consultants are used by firms as CPA agents; of which, 15 were newly-identified, distinct characteristics of this practice. The 23 characteristics can be grouped among four thematic dimensions: distinct motivating factors (motivators), strategic and tactical CPA approaches to using expert consultants, and the distinct attributes of CPA expert consultants. Each characteristic is supported by between six and 22 of the 24 source articles. This thesis also found significant parallels between the tobacco and alcohol industries in their use of CPA expert consultants.

This thesis concludes that Industrial expert consultants are not disinterested authorities on the subjects for which their services are commissioned. Rather, they are agents of their industrial sponsor’s political interests. Consequently, any information they produce and submit to regulators should be understood in the context of pursuing the industries interests and made publicly-available to support transparent policy-making.

Contents

Declaration ...... ii

Acknowledgements ...... iii

Abstract ...... iv

Contents ...... v

List of tables ...... xi

List of figures ...... xii

Epigraph ...... 1

Epigraph references ...... 2

1 Introduction ...... 3

1.1 Context ...... 3

1.1.1 Alcohol use in Australia ...... 3

1.1.2 Alcohol-related harms and their associated costs...... 4

1.1.3 The alcohol market in Australia ...... 4

1.1.4 Vested interests in alcohol policy and regulation ...... 5

1.2 Trigger for this research project ...... 5

1.3 Research questions ...... 5

1.4 Research aims ...... 7

1.5 Significance ...... 8

1.6 Research approach ...... 8

1.7 Structure of the response ...... 8

1.8 Key concepts and terms ...... 9

1.9 Chapter 1 (Introduction) references ...... 9

2 Literature Review ...... 11

2.1 Introduction ...... 11

2.2 Regulation of products that carry health risks ...... 11

2.2.1 Historical and philosophical views on regulation ...... 12

2.2.2 Risk-based regulation of consumer products ...... 13

2.2.3 Regulation of alcohol and its health risks ...... 14

2.3 Entities who influence the regulation of risky products ...... 15

2.4 Why and how firms seek to influence product regulation...... 17

2.4.1 Defining CPA ...... 17

2.4.2 Imperatives for CPA ...... 17

2.4.3 CPA strategies ...... 18

2.5 Why and how firms transmit information to regulators with a view to influencing product regulation...... 20

2.5.1 Science manipulation as an Informational CPA tactic ...... 21

2.5.2 Manufacturing doubt as an Informational CPA tactic ...... 21

2.5.3 Strategic communication as an Informational CPA tactic ...... 22

2.5.4 Science capture ...... 24

2.5.5 Policy capture ...... 25

2.6 Why and how industries use Expert Consultants as CPA agents...... 27

2.7 Research opportunities exploring how firms use Expert Consultants as CPA agents 29

2.8 Chapter 2 (Literature Review) references ...... 31

3 Research Approach ...... 35

3.1 Introduction ...... 35

3.2 Scope ...... 35

3.3 Research strategy...... 36

3.4 Theoretical Rationale ...... 36

3.5 Theoretical lenses ...... 37

3.5.1 Performativity and “perlocutionary” communication ...... 37

3.5.2 Nodal Governance ...... 38

3.5.3 The force of new ideas and interest group theory ...... 38

3.6 Methodology ...... 39

3.7 Data Collection Methods ...... 41

3.7.1 Data collection for the literature review ...... 41

3.7.2 Data collection for the Taxonomy Development analysis ...... 42

3.7.3 Data collection for the Application of the Taxonomy to Australian alcohol industry cases 44

3.8 Data analysis methods ...... 46

3.8.1 Analytical method for the literature review...... 46

3.8.2 Analytical method for the Taxonomy Development and Taxonomy Application components ...... 47

3.9 Other processes and protocols ...... 54

3.9.1 Ethics approval ...... 54

3.9.2 Peer validation of text analysis ...... 54

3.10 Chapter 3 (Research approach) references ...... 54

4 Taxonomy Development ...... 57

4.1 Introduction ...... 57

4.2 Resultant Taxonomy and its Four Dimensions ...... 58

4.3 Dimension 1 (D1) - Drivers for using CPA Expert Consultants ...... 59

4.3.1 Firms face ‘Information Threats’ whose influence may “spill over” beyond academic domains ...... 60

4.3.2 Firms face litigation supported by information associating their products and practices with health risks...... 61

4.3.3 The credibility of the Information Threat weakens the credibility of the firm, adversely affecting its public image and alliances ...... 62

4.3.4 The Information Threat generates a stronger imperative for regulators to place controls on marketing and consumption of a risky product ...... 63

4.3.5 The non-market influence of the Information Threat adversely affects the market performance of the firm ...... 64

4.4 D2 - Strategic use of CPA Expert Consultants ...... 64

4.4.1 Firms use CPA Expert Consultants to resist and delay restrictions on the marketability of the risky product ...... 65

4.4.2 CPA Expert Consultants are used to neutralise the policy influence of Information Threat proponents ...... 66

4.4.3 Firms use CPA Expert Consultants to enhance the credibility of Industry-preferred policy positions on the regulation of their products’ health risks ...... 67

4.4.4 Firms use CPA Expert Consultants to generate uncertainty in the product risk discourse ...... 68

4.4.5 Firms use CPA Expert Consultants to subvert scientific processes ...... 69

4.4.6 Firms also use external lawyers to coordinate their use of CPA Expert Consultants 70

4.4.7 Firms collaborate with their competitors to operate Consultant Programs in response to mutual Information Threats faced by the industry at large ...... 72

4.4.8 Firms recycle Consultant Programs to pre-empt or respond to the Information Threat gaining influence in other markets ...... 73

4.5 D3 - Tactical activities performed by CPA Expert Consultants ...... 75

4.5.1 Firms use CPA Expert Consultants to actively address the information threat by producing and suppressing research on the product risks in question ...... 75

4.5.2 Firms use CPA Expert Consultants to reactively address the information threat by monitoring, reviewing and criticising extant research into their product risks ...... 76

4.5.3 Firms use CPA Expert Consultants as CPA agents who disseminate the industry- preferred interpretation of their product risks and policy solutions ...... 78

4.5.4 Firms use CPA Expert Consultants to facilitate industry relationships with key decision makers ...... 79

4.5.5 Firms use CPA Consultants to troubleshoot PR issues in relation to the Information Threat 81

4.6 D4 - Qualities of CPA Expert Consultants ...... 82

4.6.1 Firms recruit Consultants who are willing to be paid by the firm for CPA services rendered ...... 82

4.6.2 Firms recruit Consultants who can be convincingly presented as a third party, independent scientist or academic ...... 83

4.6.3 Firms recruit Consultants whose credibility was bolstered by their affiliations with reputable organisations and institutes ...... 85

4.6.4 Firms sought out individuals capable of acting in two capacities: as researchers, and as PR or Government Relations professionals ...... 87

4.6.5 Firms retained Consultants whose work outputs tend to favour the industry’s policy positions ...... 88

4.7 Concluding comments: Taxonomy results ...... 90

4.8 Chapter 4 (Taxonomy Develoment) references ...... 95

5 Taxonomy Application ...... 108

5.1 Introduction ...... 108

5.2 Results of the cases studied ...... 108

5.3 Case A: Alcohol advertising policy review ...... 112

5.3.1 Case A context ...... 112

5.3.2 Case A resonance with taxonomy ...... 115

5.4 Case B: Licence application in Parkes, NSW ...... 132

5.4.1 Context ...... 132

5.4.2 Case B resonance with taxonomy ...... 134

5.5 Case C: Licence application in Minto, Petersham and Haymarket, NSW ...... 143

5.5.1 Context ...... 143

5.5.2 Case C resonance with taxonomy ...... 145

5.6 Concluding remarks ...... 153

5.7 Chapter 5 References ...... 155

6 Discussion ...... 160

6.1 The use of expert consultants as CPA agents who hinder policy-making on health risks associated with consumer products ...... 160

6.1.1 The proposed model for defining and identifying the phenomenon of firms using expert consultants as CPA agents ...... 161

6.1.2 Expert CPA consultants are active in numerous regulatory contexts and industries 163

6.1.3 Expert consultants used for CPA purposes are problematic for public trust and health 164

6.2 The use of expert consultants as CPA agents to advance the economic interests of risky product industries...... 166

6.2.1 Promoting consultants as nodal actors ...... 167

6.2.2 Optimising CPA consultants’ perlocutionary effects ...... 168

6.2.3 Using CPA consultants to counter the “Force of New Ideas” ...... 169

6.2.4 Using CPA consultants to advance the economic interests of the firm or industry 170

6.3 The need to foster transparency and support researcher independence to address the problems inherent in this practice...... 170

6.4 Limitations of this study ...... 171

6.5 Summary ...... 172

6.6 Chapter 6 references ...... 173

7 Conclusion ...... 175

7.1 The importance of addressing industrial use of expert consultants as CPA agents 175

7.2 What this study adds to this field of research ...... 176

7.3 Areas for further research ...... 177

7.4 Chapter 7 references ...... 178

8 Appendix ...... 180

8.1 Taxonomy Development data sample attributes ...... 180

Bibliography ...... 186

List of tables

Table 1: Alignment of Saloojee and Dagli's tobacco industry tactics taxonomy with Hillman and

Hitt's corporate political strategy taxonomy...... 20 Table 2: Categories of moral disengagement, based on Bandura's Manual for Coding Modes of Moral Disengagement [70; 71]...... 24 Table 3: Article search strategy for Taxonomy Development data collection ...... 43 Table 4: Volume and date range of GIPA documents and files pertaining to each case ...... 46 Table 5: Parameters set for the Taxonomy Development (TD) and Taxonomy Application (TA) analyses ...... 51 Table 6: Resultant Taxonomy, its four Dimensions and 23 Characteristics ...... 59 Table 7: Alignment of initial set of attributes with the final taxonomy ...... 94 Table 8: Taxonomy Application results for the three cases...... 111 Table 9: Count and proportion of highlighted sections of text from Case A documents that were coded against the 23 characteristics of the Taxonomy...... 115 Table 10: Count and proportion of highlighted sections of text from Case B documents that were coded against the 23 characteristics of the Taxonomy...... 135 Table 11: Count and proportion of highlighted sections of text from Case C documents that were coded against the 23 characteristics of the Taxonomy...... 146 Table 12: Bibliographic list of papers included in Taxonomy Development data sample...... 180

List of figures

Figure 1: Size of the Australian alcohol retail market by market share and revenue ($bn) [13;

14, p. 6]...... 4 Figure 2: Booth, Colomb and Williams-inspired schema of conditional precursor topics and research questions addressed in this thesis...... 7 Figure 3: Schema of the layers and specialised fields of research examining how firms and industries serve their interests, with a focus on non-market activities serving their interests. 16 Figure 4: Theoretical rationale diagram ...... 36 Figure 5: Taxonomy Development search process ...... 44 Figure 6: Taxonomy application data search process ...... 45 Figure 7: Nickerson and colleagues’ Taxonomy Development Method [121, p. 345]...... 49 Figure 8: Taxonomy results map ...... 92 Figure 9: Resonance of characteristics as measured by the count of characteristics across the three cases studies ...... 110 Figure 10: Ten questions posed by OLGR to Professor Jones in a letter dated 13 May 2013.

...... 113 Figure 11: Ranking (in descending order) of the taxonomy characteristics by the count of highlighted sections of text from Case A documents that were coded against the 23 taxonomy characteristics...... 116 Figure 12: The Hanson Report incorrectly attributed the quote (see highlighted text below) to

Ellicksen and colleagues [245, p. 10], rather than to Furham’s own unpublished report...... 121 Figure 13: The comment attributed to Ellicksen and colleagues in the Hanson Report (see figure above), was in fact stated in Alcohol and Young Adults [251, p. 65] - a monograph authored by Professor Furnham (see highlighted text below)...... 121 Figure 14: The Furnham Report cites Diageo–a multinational alcohol beverage company–as the publisher of his report titled ‘Alcohol and Young Adults’ [243, p. 30]...... 122 Figure 15: Schwartz commentary reinforcing the conclusions of Professors Hanson and Furnham regarding professor Jones. Screenshot of Schwartz’s letter-cum-report to OLGR [241, p. 24]...... 122

Figure 16: Schwartz enhancing the credibility of Woolworths’ policy position by referring to Professors Hanson and Furnham’s reports. Screenshot of Schwartz’s letter-cum-report to

OLGR [241, p. 24]...... 123 Figure 17: Screenshot from Professor Furnham’s CV [244, p. 30]...... 129 Figure 18: Screenshot of schema in Furnham's Report...... 131 Figure 19: Ranking (in descending order) of the taxonomy characteristics by the count of highlighted sections of text from Case B documents that were coded against the 23 taxonomy characteristics...... 136 Figure 20: Ranking (in descending order) of the taxonomy characteristics by the count of highlighted sections of text from Case C documents that were coded against the 23 taxonomy characteristics...... 147 Figure 21: Four forces give impetus to the use of expert consultants as CPA agents ...... 167

Epigraph

‘Junk science is the mirror image of real science, with much of the same form but none of the substance. [...] It is a hodgepodge of biased data, spurious inference, and logical legerdemain. [...] It is a catalog [sic] of every conceivable kind of error: data dredging, wishful thinking, truculent dogmatism, and, now and again, outright fraud’.

– Peter Huber (former executive director of the Philip Morris-funded The Advancement of Sound Science Coalition [TASSC] [1]), Galileo’s Revenge (1991) [2]

Opponents of regulation use the existence of uncertainty, no matter its magnitude or importance, as a tool to counter imposition of public health protections that may cause them financial difficulty. It is important that those charged with protecting the public’s health recognize that the desire for absolute scientific certainty is both counterproductive and futile’

– David Michaels and Celeste Monforton, Public Health Matters (2005) [3]

‘All scientific work is incomplete—whether it be observational or experimental. All scientific work is liable to be upset or modified by advancing knowledge. That does not confer upon us a freedom to ignore the knowledge we already have, or to postpone action that it appears to demand at a given time. […] Who knows, asked Robert Browning, but the world may end tonight? True, but on available evidence most of us make ready to commute on the 8:30 next day’.

– Sir Austin Bradford Hill, 1965 address to the Royal Society of Medicine [4]

Epigraph references

1. Ong, E. K., & Glantz, S. A. (2001). Constructing "sound science" and "good epidemiology": Tobacco, lawyers, and public relations firms. American Journal of Public Health, 91, pp. 1749- 1757. doi:10.2105/AJPH.91.11.1749 2. Huber, P. W. (1991). Galileo’s Revenge. New York, NY: Basic Books. 3. Michaels, D., & Monforton, C. (2005). Manufacturing uncertainty: Contested science and the protection of the public's health and environment. American Journal of Public Health, 95, pp. 39-48. doi:10.2105/AJPH.2004.043059 4. Hill, A. B. (1965). The environment and disease: association or causation? Proceedings of the Royal Society of Medicine, 58, pp. 295-300.

1 Introduction

The aim of this chapter is to outline the context, trigger, research questions, aims and significance of this research project, and to outline the research approach and structure of this thesis.

1.1 Context

The topic of this thesis (i.e. the use of CPA expert consultants in regulatory proceedings by the alcohol industry in Australia) is a facet of a broader policy area: alcohol control and harm prevention. There are four contextual aspects of this topic that are relevant to this thesis: alcohol use in Australia; alcohol harms and their associated costs; attributes of the alcohol market in Australia; and vested interests in alcohol policy and regulation.

1.1.1 Alcohol use in Australia

Alcohol is widely consumed and often socially accepted as a consumer product. Three-quarters (77 per cent) of Australians over the age of 14 consume alcohol [5, p. 33]. However, the consumption of alcohol above certain volumes leads to a range of short-term and lifetime harms. What concerns policy-makers and communities alike are the substantial proportions of people who consume alcohol at volumes that put them at risk of these harms. One in six (17.1 per cent) Australians aged 14 years and older consume alcohol at levels posing a lifetime risk of harmi (e.g. cancers, organ damage and cardiovascular diseases) [5, p. 37]. One in four (26 per cent) Australians aged 14 years and older consume alcohol at levels posing short-term risks of harmii (i.e. accidental and intentional injuries, acute alcohol poisoning, assaults) [5, p. 37]. Consequently, demand for alcohol in Australia is concentrated among risky consumers: 20 per cent of consumers – nearly four million (3,805,753) people – imbibe three-quarters (74.2 per cent)iii of all alcohol consumed in Australia [6, pp. 10-11; 7, pp. 13-14].

i Alcohol consumption posing lifetime risks of harm is defined by the Australian Institute of Health and Welfare (AIHW) and the National Health and Medical Research Council of Australia (NHMRC) as the consumption of, on average, more than two standard drinks per day [5, p. 37]. ii Alcohol consumption posing short term risk of harm is defined by the AIHW and NHMRC as the consumption of more than four standard drinks on one occasion at least once a month [5, p. 37]. iii Roughly 19.23 litres of pure alcohol per person per year.

1.1.2 Alcohol-related harms and their associated costs

With the consumption of alcohol comes its harms and associated costs. In Australia, alcohol consumption is implicated in 15 deaths and 435 hospitalisations per day [8]. Alcohol misuse by drinkers in Australia is estimated to cost the economy $15.3 billion annually [9]. In addition, alcohol-related harms and their costs are not isolated to consumers: alcohol-related harms borne by persons other than the consumer (e.g. assault, accidental injury and harm to unborn babies) are estimated to cost the Australian economy $20 billion annually [10]. These harms and their economic and social burdens are strong drivers for policy makers to regulate alcohol and reduce risky consumption of alcohol. There are many and varied stakeholders who have an interest in alcohol policy and regulation, including firms who trade in alcohol.

1.1.3 The alcohol market in Australia

A complicating factor is that alcohol is a lucrative, legal and specially-regulated product that is widely available. In a country with a population of just over 24.77 million people [11], there are estimated to be 53,533 venues licensed to sell alcohol in Australia [12, Table 1 on p. 8]. This represents one licensed venue for every 317 people over 18 years of age in Australia. The retail liquor market in Australia is also highly concentrated in terms of competition. According to Roy Morgan Research, the biggest competitor (by market share) in the retail liquor market is Woolworths Group (see Figure 1) [13]. Through its 1,500 licensed liquor stores [14, p. 6], Woolworths Group controls nearly half (49.2 per cent) of the $14.5 billion retail liquor market [13]. The biggest brand in Woolworths Group is Dan Murphy’s, which holds a 29.9 per cent share of the retail liquor market. Dan Murphy’s alone has twice the market share of its nearest competitor, Coles Group, which holds a 15.5 per cent share of the retail liquor market.

Figure 1: Size of the Australian alcohol retail market by market share and revenue ($bn) [13; 14, p. 6]

1.1.4 Vested interests in alcohol policy and regulation

Considering the concentration of the alcohol market (in terms of customers and competition), the commercial interests of the alcohol industry would be threatened by policies that effectively reduce risky levels of alcohol consumption across the Australian population. Research by Livingston estimates that reducing the top 20 percent of Australian drinkers’ alcohol consumption to low-risk levels would see a 39 per cent reduction in total alcohol consumed [7]. The potential impact on the retail liquor market of such a reduction in consumer demand would be devastating in terms of sales and profitability. Given its market share, no entity would feel the impact of such a scenario more than Woolworths Group. Hence, the alcohol industry – Woolworths Group in particular – has a strong vested interest in: policies that do not reduce alcohol demand; contesting research which finds that alcohol market attributes (e.g. availability, price and promotion) contribute to risky alcohol consumption and associated harms; and contesting research into effective mechanisms for reducing alcohol demand among risky consumers. These commercial interests in health policy, and how they are pursued, are the subject of this research.

1.2 Trigger for this research project

Publicly-released submissions concerning three alcohol regulation cases in Australia reveal that liquor retailers have resisted harm prevention policies that restrict alcohol availability and promotion [15]. These firms commissioned expert consultants to produce unpublished, non- peer-reviewed critiques of extant research associating the availability and promotion of alcohol with harms to the consumer and others. These critiques were then submitted to alcohol regulation proceedings the firms were implicated in. In 2015 these submissions (including e- mails, memos, detailed reports and letters authored by the firms, their lawyers and expert consultants) were publicly-released under freedom of information provisions. This data enabled investigation of the research questions for this research project.

1.3 Research questions

In serving the research aims, this thesis responds to three research questions:

A. Why and how do industries use CPA expert consultants as agents of industrial CPA interests?

B. How has the alcohol industry in Australia used CPA expert consultants as agents of industrial CPA interests? C. What are the characteristics of how firms and industries use CPA expert consultants?

The project seeks to address knowledge gaps that exist in relation to questions A to C. Question A is discussed in extant literature, but – as noted in the literature review (see chapter 2) – the extant literature has insufficiently explored this topic in the context of the alcohol industry in Australia. To inform the response to Question A, one must first look at this unexplored industrial context. Hence, this project seeks to answer Question B as a means of addressing knowledge gaps in relation to Question A. However, to be able to probe the alcohol context and compare it to others, one must first define the characteristics of how firms use CPA expert consultants. Hence, this project seeks to answer Question C as a means of addressing the knowledge gaps that exist in relation to questions A and B.

This sequencing of research questions follows Booth, Colomb and Williams’ approach to breaking down conceptual problems and interrogating knowledge gaps [16, pp. 56-58]. Their logic is that each research question should have a precursory, conditional question. Responding to the root conditional question enables the response to a higher order research question; this higher order research question is also a conditional question linked to another higher order question, and so on. This cyclical logic progresses upwards towards the overarching question, building ladder-like research questions which contextualise each higher order query. Figure 2 below depicts the conditional cascade of how the Research Questions of this project are related to higher order Contextual Topics discussed in the literature review (see chapter 2).

Figure 2: Booth, Colomb and Williams-inspired schema of conditional precursor topics and research questions addressed in this thesis.

Contextual Topic (i): Regulation of products that carry health risks

Contextual Topic (ii): Entities who influence the regulation of risky products

Contextual Topic (iii): Why and how firms seek to influence product regulation

Contextual Topic (iv): Why and how firms exchange information with regulators to influence product regulation

Research Question (A): How do industries use consultants to exchange information with regulatory authorities? (Also Contextual Topic [v])

Research Question (B): How has the alcohol industry in Australia used Expert CPA Consultants as agents of industrial CPA interests?

Research Question (C): What are the characteristics of how firms and industries use Expert CPA Consultants?

Contextual Topics discussed in extant literature and addressed in the Literature Review of this thesis Research Questions this project seeks to answer which extant literature has not explored in the context of the Australian alcohol industry Research Questions this project seeks to answer

1.4 Research aims

This thesis contributes to understanding how firms use CPA expert consultants to transmit information with regulators of risky products, the motives for these activities, and implications for public health policy. The aims of this research are threefold:

• To understand how firms seek to influence product risk policies. • To address the knowledge gaps that exist in relation to the research questions and one industry in particular: the alcohol industry. • To offer a framework that enables policy makers and other public interest entities to identify when and how firms use expert consultants as agents of their political interests.

In fulfilling these aims, the findings support efforts to counter or temper the influence of CPA expert consultants in product risk policy-making. Thus, these findings support the implementation of effective, evidence-based harm prevention policies and regulations concerning risky consumer products.

1.5 Significance

Various stakeholders will benefit from understanding how alcohol companies avoid accountability for harmful externalities associated with their operations. This research serves policy-makers and independent researchers who develop and advocate for alcohol harm- preventing policies. Inaction on this issue may contribute to increasing alcohol harm rates (and associated costs) due to the growth of the retail liquor market.

1.6 Research approach

This project applied a blended methodology of inter-subjective, inter-textual, pragmatic and neutral research approaches to the research questions. In responding to Question C, this research project characterised industrial use of expert consultants by analysing internal tobacco industry memos studied in extant literature. In responding to Research Question B, these characteristics were then compared against the practices of the alcohol industry by analysing submissions from the largest Australian liquor retailer, Woolworths, to regulatory authorities in New South Wales, Australia. The results of both analyses and the literature review (see chapter 2) inform the response to Question A. The research approach is described in detail in chapter 3.

1.7 Structure of the response

The thesis is structured into the following sections:

• Chapter 1: Introduction • Chapter 2: Literature Review • Chapter 3: Research Approach • Chapter 4: Results: tobacco industry taxonomy development • Chapter 5: Results: application of the taxonomy to the alcohol industry • Chapter 6: Discussion • Chapter 7: Conclusion • Chapter 8: Appendices • Bibliography

In-text references (except the Bibliography) are numbered and collated in reference lists at the end of each chapter. All distinct references are listed alphabetically in the Bibliography.

1.8 Key concepts and terms

There are two key concepts explored in this thesis: non-market activities (NMA) by firms, and corporate political activities (CPA) by firms. While “Market Activities” of firms focus on the internal ‘distinctive competencies’ of the firm and 'interactions between the firm and other parties that are intermediated by markets or private agreements’, NMA is defined as ‘the social, political and legal arrangements that structure the firm’s interactions outside of and in conjunction with markets [17, p. 47]. CPA is a branch of NMA, which refers to corporate political behaviours that encompass attempts to use government power to advance private ends [18].

A key term used throughout this thesis is “CPA expert consultant”. This term refers to individuals engaged by an industry or firm to act as an expert consultant on topics concerning product regulation; in so doing, CPA expert consultants serve the CPA interests of the sponsor industry or firm. These concepts and terms are elaborated in the Literature Review (see chapter 2).

1.9 Chapter 1 (Introduction) references

5. Australian Institute for Health and Welfare. (2017). National Drug Strategy Household Survey 2016: Detailed findings. Drug Statistics series no. 31. Archive: Canberra, Cat. no. PHE 214. Available from: https://www.aihw.gov.au/reports/illicit-use-of-drugs/2016-ndshs- detailed/contents/table-of-contents. 6. Foundation for Alcohol Research and Education. (2016). Risky Business: The alcohol industry’s dependence on Australia’s heaviest drinkers. Retrieved from Canberra. 7. Livingston, M. (2015). Understanding recent trends in Australian alcohol consumption. Canberra: Foundation for Alcohol Research and Education Centre for Alcohol Policy Research. 8. Gao, C., Ogeil, R. P., & Lloyd, B. (2014). Alcohol’s burden of disease in Australia. Canberra: FARE and VicHealth in collaboration with Turning Point. 9. Collin, D. J., & Lapsley, H. M. (2008). The costs of tobacco, alcohol and illicit drug abuse to Australian society 2004/2005. Canberra: Commonwealth of Australia. Retrieved from https://www.health.gov.au/internet/drugstrategy/publishing.nsf/Content/34F55AF632F67B70C A2573F60005D42B/$File/mono64.pdf. 10. Laslett, A.-M., Catalano, P., Chikritzhs, T., et al. (2010). The range and magnitude of alcohol’s harm to others. Fitzroy, VIC: Alcohol Education and Rehabilitation Foundation Centre for Alcohol Policy Research, Turning Point Alcohol and Drug Centre, Eastern Health,. 11. Australian Bureau of Statistics. (2017). December key figures. Retrieved from Canberra: http://www.abs.gov.au/ausstats/[email protected]/mf/3101.0 Date accessed. 12. Trifonoff, A., Andrew, R., Steenson, T., et al. (2011). Liquor Licensing Legislation in Australia: executive summary. An examination of Liquor Licensing Legislation in Australia as at December 2010. Retrieved from Adelaide, SA. 13. Roy Morgan Research. (2017). The Australian alcohol retail market in review. Retrieved from http://www.roymorgan.com/findings/7181-liquor-retail-australia-201703201051 Date accessed.

14. Woolworths Group. (2017). 2017 Annual Report Retrieved from Sydney: https://www.woolworthsgroup.com.au/icms_docs/188795_annual-report-2017.pdf Date accessed: 23/02/2019. 15. Giorgi, C., & Ferguson, A. (2014, 20/07/2014). Shopper dockets – the OLGR investigation. DrinkTank. Retrieved from http://drinktank.org.au/2014/05/shopper-dockets-the-olgr- investigation/ 16. Booth, W. C., Colomb, G. G., & Williams, J. M. (2008). The Craft of Research (Third Edition ed.). Chicago and London: The University of Chicago Press. 17. Baron, D. P. (1995). Integrated Strategy: Market and Nonmarket Components. California Management Review, 37(2), pp. 47-65. doi:10.2307/41165788 18. Mitnick, B. M. (1993). Choosing agency & competition. Chapter Chapter 1 in B. M. Mitnick (Ed.), Corporate Political Agency (pp. 1-12). Newbury Park, CA: Sage.

2 Literature Review

2.1 Introduction

Aim. The aim of this chapter is to discuss why consumer products that carry health risks (“risky products”) are regulated, with a focus on how risky product industries seek to influence their regulation. This chapter also seeks to identify what is known about how risky product industries use Expert Consultants (as CPA agents) to influence the regulation of risky products. This Review synthesises extant literature that responds to the Contextual Topics of this project, as depicted in Figure 2.

Method. The Research Approach chapter (see page 35) describes the literature review method in detail.

Structure. As shown in Figure 2, the Literature Review chapter spans Contextual Topics (i) to (v), focusing on progressively more niche aspects of the overarching topic. These Contextual Topics are:

(i) Regulation of products that carry health risks (section 2.2). (ii) Entities who influence the regulation of risky products (section 2.3). (iii) Why and how firms seek to influence product regulation (section 2.4). (iv) Why and how firms transmit information to regulators with a view to influencing product regulation (section 2.5). (v) Why and how industries use expert consultants as CPA agents (section 2.6).

Gaps in the literature are described in section 2.7. Citations in this chapter are listed in section 2.8.

2.2 Regulation of products that carry health risks

Literature on why products that carry health risks are regulated is concentrated on two areas of discussion. First, historical and philosophical perspectives on product regulation. Second, the conceptualisation of risk. This section canvasses these two topics, and – considering the alcohol industry case studies of this project – culminates in an overview of literary perspectives on alcohol regulation.

2.2.1 Historical and philosophical views on regulation

Governments have various motives for regulating consumer products. Robert Baldwin and Martin Cave see these motives as either being an imperative to correct market failures, or to provide public goods where no private market exists [19]. According to Deborah Lupton and Dorothy Porter, these motives are reflected in the history of human bodies – and the products they consume – being regulated to manage population health risks [20; 21]. This biopolitical perspective on Western history has been explored by French philosopher, Michel Foucault [22]. As highlighted by John Wood, there is an ancient and diverse tradition of consumer protection measures in human civilization:

Governments, alerted to practices considered injurious to the health, safety or economic welfare of the community, have, from time to time, been sufficiently roused to bring in legislative measures to cure the ill. Sometimes they have even been moved to prevent the ailment arising [23, p. 634].

Modern interest in regulating health risks has foundations in the Utilitarian imperative of accomplishing good health for the most number of people [21, p. 2]. However, disagreement continues as to the extent and way governments may pursue this imperative. Liberalist philosophers and policy makers reject government interference in the lives of citizens and, by extension, the operations of private enterprises. Here, individual liberty is supreme. In 1776, Adam Smith argued that government interventions in commerce should be limited to those serving consumer interests:

Consumption is the sole end and purpose of all production; and the interest of the producer ought to be attended to, only so far as it may be necessary for promoting that of the consumer [24].

Smith’s perspective is challenged by the tension between individual liberty and adverse externalities generated by the exercising of one’s liberty. In 1859, John Stuart Mill, a Liberal and Utilitarian philosopher, sought a compromise between individualism, beneficence and paternalism in proposing the “Harm Principle”. This principle holds that:

[The] only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant [25].

Intergovernmental bodies (such as the World Health Organization, or WHO [26]) and public health social scientists (notably Sharon Friel [27], Deborah Lupton [21] and Jeff Collin [28; 29])

© Copyright by Lisa Margaret Buffinton 2019 | All Rights Reserved 12 Lisa Margaret Buffinton (ANU UID: U4699563) see the limitations of Liberal Utilitarian perspectives. An emphasis on individual responsibility for health risks can be problematic, because it overlooks socio-political, economic and structural determinants of ill-health. In so doing, Liberal Utilitarian policies can foster counterproductive “blaming” of persons experiencing ill-health [21, p. 3]. As discussed in the next section, consumer product risk assessments and tolerances are influenced by the varied motives of fairness, liberty, and social equity in regulation and governance of individual and commercial activities.

2.2.2 Risk-based regulation of consumer products

As discussed by Cave and Baldwin, some governments may choose to impose regulations on consumer products to correct for, or manage the risk (or chance) of, adverse externalities occurring [19]. This can include deleterious effects of a product on the health of consumers and third parties. The regulated consumer product that this thesis focuses on is alcohol; its regulation is outlined in section 2.2.3.

Developing product regulations to address health risks is complex because the entities driving regulation hold different outlooks on the significance of a risk. As explained by Christopher Reynolds,

[The] significance of risk is more than its likelihood because the consequences of risks differ… Thus each risk needs to be assessed in ways that go beyond likelihood, to measure qualitative issues: public concerns about it; the extent to which the risk will be treatable if it occurs and the costs of treating it; and the social or policy significance of its occurring [30, p. 146].

Baldwin and Cave describe five theories that explain regulation by examining the driving interests. These are: the public interest; interest groups; private interests; the “Force of ideas”; and institutional influence [19]. Interested parties influence risk assessments by regulatory authorities to different degrees. This can result in a “polarity” of opinion. As noted by Christopher Reynolds, ‘neither view is necessarily “wrong”; rather, they are focusing on different facets of the same issue‘ [30, p. 158]. While Reynolds takes a neutral stance, Sheldon Krimsky argues that the social construction of evidence influences the interpretation of research findings or “facts” [31]. According to Dorothy Nelkin, risk communication is influenced by framing, problem definition and choice of language [32]. In light of Krimsky and Nelkin’s assertions, Lisa Bero concludes that:

Since data do not “speak for themselves,” interest groups can play a critical role in creating and communicating the research evidence on risk – usually in support of their own agendas [33, p. 200].

Efforts made by risky product industries to influence public health regulation, policy and estimates of risk are documented in the literature. These are discussed in section 2.5 and explored in the results chapters of this thesis.

2.2.3 Regulation of alcohol and its health risks

In the words of Thomas Babor and colleagues, alcohol is ‘no ordinary commodity’ [34]. Alcohol is a consumer product subject to special regulations that aim to address the harms it causes to both the consumer and others. WHO describes alcohol as ‘a psychoactive substance with dependence-producing properties that has been widely used in many cultures for centuries’ [35]. The immediate effect of alcohol can include ‘feelings of relaxation, wellbeing and loss of inhibitions’ – feelings which underpin its appeal as a consumer product [36, p. 22].

When consumed in harmful quantities, alcohol is toxic: causing harm when it enters the body. Short-term, or acute alcohol consumption dampens the consumer’s cognitive performance, particularly in the motor and sensory centres of the brain [36, p. 22]. It reduces the consumer’s cognitive or verbal capacity to resolve conflicts, and can amplify aggressive behaviours [36, p. 22]. These effects contribute to the incidence and severity of acute harms to consumers and third parties. Acute alcohol harms span physical and psychological injuries and deaths from, inter alia, assaults, accidents and self-harm.

The cumulative, long-term adverse effects of alcohol consumption are numerous. These effects include: cardiovascular disease, cancers, diabetes, nutrition-related conditions, overweight and obesity, risks to unborn babies, liver disease, mental health conditions, alcohol tolerance and dependence, long-term cognitive impairment, and self-harm [36, pp. 24-25].

The Global status report on alcohol and health 2014 produced by WHO summarises the global alcohol-related burden of disease as follows [37]:

• Annually, harmful alcohol use results in 3.3 million deaths worldwide - representing one in 20 (5.9 per cent) deaths. • Harmful alcohol use is a causal factor in over 200 disease and injury conditions.

• In terms of in disability-adjusted life years (DALYs)iv, 5.1 per cent of the global burden of disease and injury is attributable to alcohol. • Alcohol consumption causes death and disability relatively early in life: approximately one in four (25 per cent) of all deaths among 20–39 year-olds is alcohol-attributable [35].

The definition of alcohol risks and harm thresholds varies from country to country and depends on the extent of exposure – whether acute or long-term. In Australia, the Federal Government’s National Health and Medical Research Council (NHMRC) produces the Australian Guidelines to Reduce Health Risks from Drinking Alcohol to ‘establish the evidence base for future policies and community materials on reducing the health risks that arise from drinking alcohol’ [36, p. 1]. Regulation of alcohol availability, price (including taxation) and its promotion and marketing practices are policy levers which affect the volume of alcohol consumed and the incidence and severity of associated harms [34]. As discussed in the next section, these policies may affect the competitive position of entities who benefit from the sale of risky products like alcohol.

2.3 Entities who influence the regulation of risky products

There are many and varied stakeholders who are interested in the regulation of consumer products. These stakeholders include: the firm or industry who trades in the product in question; the public; government and independent regulatory authorities; legislators; the judiciary; consumer groups; and non-government organisations. Literature on entities who influence the regulation of consumer products is concentrated in two fields of research: Political Economy studies and Organisation Management studies.

Public health-serving regulations can be effective in preserving the health, wellbeing and life expectancy of the affected population. Citing Gale and Buchholz [38], Amy Hillman and Michael Hitt acknowledge that government actions that can affect firm competitiveness and sustainability:

Government decision makers have the ability to alter the size of markets through government purchases and regulations affecting substitute and complementary products to affect the structure of markets through entry and exit barriers and antitrust legislation; to alter the cost iv The disability-adjusted life year (DALY) extends the concept of potential years of life lost due to premature death to include equivalent years of "healthy" life lost from being in states of poor health or disability.

structure of firms through various types of legislation pertaining to multiple factors, such as employment practices and pollution standards […]; and to affect the demand for products and services by charging excise taxes and imposing regulations that affect consumption patterns [39, p. 826].

Consequently, firms and industries may engage in “Nonmarket Activities” (NMA) to resist such regulation, even if the policies serve desirable public health objectives.

Since David Baron’s 1995 paper, ‘Integrated strategy: market and nonmarket components’ in California Management Review, there has been a scholarly distinction of corporate activities by the directness of their relationship to markets in which the firm or industry operates [17]. “Market Activities” focus on internal ‘distinctive competencies’ of the firm and 'interactions between the firm and other parties that are intermediated by markets or private agreements’ [17, p. 47]. On the other hand, NMA are defined as ‘the social, political and legal arrangements that structure the firm’s interactions outside of and in conjunction with markets’ [17, p. 47]. Scholarly NMA research is specialised into sub-fields examining Corporate Social Responsibility activities, Corporate Legal Activities, and CPA of firms. Firms’ efforts to influence consumer product regulation falls under the CPA sub-field of NMA research (see Figure 3). This thesis contributes to the NMA sub-field of CPA research by focusing on why and how firms and industries who trade in risky products (e.g. alcohol, tobacco) seek to influence product regulations.

Figure 3: Schema of the layers and specialised fields of research examining how firms and industries serve their interests, with a focus on non-market activities serving their interests.

2.4 Why and how firms seek to influence product regulation

In exploring why firms seek to influence product regulation, this section canvasses four sub- topics. First, what corporate political activity (CPA) is. Second, firms’ drivers for engaging in CPA. Third, entities who are subjects of CPA. Fourth, the variables influencing firms’ CPA decisions.

2.4.1 Defining CPA

CPA (as defined by Management Studies scholar, Barry Baysinger) refers to corporate attempts to shape government policy in ways favourable to the firm [40]. Government Relations Activity (GRA) – the other side of the CPA “coin” – is principally an educational undertaking by an interested group, according to the Association of Accredited Public Policy Advocates to the European Union (AALEP):

At its core, [GRA] is an educational process mixed in with a liberal amount of advocacy: Educating business and industry leaders about the governmental process; Educating officials about the issues important to business or other constituencies; and Educating governmental and business leaders, and the public, about the potential consequences of legislation [41].

Both CPA and GRA align with the view of political science scholar, Barry Mitnick, that corporate political behaviours encompass attempts to use government power to advance private ends [18]. For simplicity, this thesis uses the term “Corporate Political Activity” (CPA) to refer to these behaviours.

2.4.2 Imperatives for CPA

Hillman and Hitt’s review of CPA literature summarises three imperatives for firms to be politically active [39]. First, as government policies may influence competitive environments [17; 42; 43; 44; 45] and transaction costs [46; 47], they can influence the productivity and competitive performance of firms and industries [39, pp. 825-826; 48]. Second, firms are compelled to act when there is a significant relationship between the competitive and political strategies of a firm [17; 39, p. 826; 49; 50; 51; 52]. Third, the objective of CPA is to secure the firm’s continued survival and success by producing business-friendly public policy outcomes [40; 53]. As summarised by Hillman and Hitt:

Through political behaviour firms can potentially increase overall market size; gain an advantage related to industry competition, thereby reducing the threats of substitutes and entry; and increase their bargaining power relative to suppliers and customers [39, pp. 826-827].

In their examination of food industry CPA regarding marketing policy, Penny Field and Robin Gauld assert that an alternative (though related) construct, “Vested Interests”, aids in explaining how firms seek to influence health policy individually or collectively [54]. Vested Interests is defined by Field and Gauld (citing Evelyne deLeeuw) as being ‘organised groups who define their domain and act to maintain the survival and advancement of their organisation within that domain’ [55]. Jonathan Gornal’s 2014 investigation for the British Medical Journal into the UK Government’s consultation on alcohol minimum unit pricing policy drew conclusions similar to those of Hillman and Hitt, in finding that CPA on this issue was dependent how much economic influence a firm or industry group could wield [56].

With that in mind, firms engage in CPA with a view to achieving public policy outcomes that achieve three objectives. These are: elevation of the voice of the firm in government affairs; reinforcement of their economic positions within the market; and hindering the progress and competitiveness of their domestic and foreign competitors [57; 58]. As discussed in the next section, firms engage in various CPA strategies to advance their interests.

2.4.3 CPA strategies

Literature on industry CPA strategies tends to focus on specific, individual strategies. Two seminal papers provide taxonomies for CPA strategies and tactics:

• Hillman and Hitt’s 1999 paper ‘Corporate political strategy formulation: a model of approach, participation, and strategy decisions’ published in Academy of Management Review [39]; and • Saloojee and Dagli’s 2000 paper ‘Tobacco industry tactics for resisting public policy on health’ published in Bulletin of the World Health Organization [59].

Hillman and Hitt developed their model as a method for understanding the choices and decisions that firms make before becoming politically active. They conclude that there are three key decisions made by firms when formulating their political strategies [39]. First, firms decide on the approach: whether to adopt a “transactional” (or issue-by-issue) approach, or a “relational” (long-term) approach. Second, firms decide the level of participation: whether to

© Copyright by Lisa Margaret Buffinton 2019 | All Rights Reserved 18 Lisa Margaret Buffinton (ANU UID: U4699563) act “individually”, or “collectively” (through industry groups and trade associations, for example). Third, firms decide which strategy best achieves their objectives. As depicted in Figure 3, this may be either:

• an “Informational” strategy, where the target of the strategy is the decision maker, and the good supplied is information; • a “Financial” strategy, where the political decision maker is targeted with financial inducements to align the incentives of the political decision maker with those of the industry; or • a “Constituency-building” strategy, where individual voters and citizens are the target of the strategy, and the good supplied is constituent support for the political decision maker [39, pp. 834-835].

According to Hillman and Hitt, “Informational” tactics include: lobbying; commissioning research projects and reporting research results; testifying as expert witnesses; and supplying position papers or technical reports [39, pp. 834-835].

Saloojee and Dagli categorised the global strategies and tactics employed by the tobacco industry for resisting public policy on health. They examined formerly secret, internal tobacco industry documents which reveal a half-century-long industrial strategy to ‘resist smoking restrictions, restore smoker confidence, and preserve product liability defence’ [59, p. 903]. To achieve this the tobacco industry foresaw two pre-requisite achievements: ‘the reversal of scientific and popular opinion that environmental tobacco smoke was harmful to health, and the restoration of the social acceptability of smoking’ [60]. Saloojee and Dagli’s thematic analysis of these internal tobacco industry documents (released over years of litigation and settlements) depicts 14 tactics employed by the tobacco industry globally in support of their broader political strategies to resist public health policies. These tactics (and their goals) can be grouped in alignment with the corporate political strategy taxonomy proposed by Hillman and Hitt, as depicted in Table 1 below.

As discussed in the next section, understanding why firms engage in CPA frames how and why firms (particularly those trading in products bearing health risks) transmit information to regulatory authorities.

Table 1: Alignment of Saloojee and Dagli's tobacco industry tactics taxonomy with Hillman and Hitt's corporate political strategy taxonomy.

Strategy (derived Tactics, and their goals (derived from Saloojee & Dagli Characteristics from Hillman & [59]) (derived from Hitt [39]) Hillman & Hitt [39]) Informational • “Consultancy programme” to ‘recruit supposedly Targets political independent experts critical of tobacco control measures’. decision makers by • “Intelligence Gathering” to ‘monitor opponents and social providing trends in order to anticipate future challenges’. information. • “Lobbying” to ‘make deals and influence political processes’. Financial • “Political funding” to ‘use campaign contributions to win Targets political incentive votes and legislative favours from politicians’. decision makers by • “Bribery” to ‘corrupt political systems so that the industry providing financial can bypass the law’. incentives. • “Smuggling” to ‘undermine tobacco excise tax policies and thereby increase profits’. • “Litigation” to challenge legislation. • “Intimidation” to ‘use legal and economic power as a means of harassing and frightening opponents’. Constituency- • “Smokers’ rights groups” to ‘create an impression of Targets political building spontaneous, grass-roots public support’. decision makers • “Creating alliances” to ‘mobilize farmers, retailers and indirectly through advertising agencies with a view to influencing legislation’. constituent support. • “Philanthropy” to ‘buy friends and social respectability from arts, sports and cultural groups’. • “International treaties” to ‘use trade agreements to force entry into closed markets’. • “Joint manufacturing agreements” to form joint ventures with state monopolies and subsequently pressurize governments to privatize monopolies. • “Public Relations” to ‘mould public opinion, using the media to promote positions favourable to the industry’. 2.5 Why and how firms transmit information to regulators with a view to influencing product regulation

The literature on how and why firms transmit information to regulatory authorities in regulatory proceedings is concentrated in studies of Political Economy. According to Aplin and Hegarty, firms and industries seek to resist public policy by providing two types of persuasive information to policy decision makers [61]. First, information about the industry’s preferred policy outcomes. Second, information concerning the costs and benefits of different policy outcomes. The information disseminated to policy decision makers varies depending on the firm’s interests and issues at hand. Section 2.5 first explores how science manipulation, “manufacturing doubt” and strategic communication are employed as Informational CPA tactics. This section then discusses how such activities serve the strategic goals of achieving the “capture” of scientific research and policy developments regarding risky products.

2.5.1 Science manipulation as an Informational CPA tactic

Manipulation of science by risky product industries serves the Informational strategy of propagating doubts around the research underpinning public health policy and regulation. this strategy exploits the limitations of scientific research to generate a narrative of academic and policy controversy. As noted by Bero,

[Scientific] research is characterized [sic] by uncertainty, which poses problems when decision- making moves to a public forum. It is often to the benefit of interest groups to generate controversy about data because the controversy is likely to slow or prevent regulation of a given product [33, p. 200].

Propagation of doubt (also referred to as “Manufacturing Doubt” by Saloojee and Dagli [59], or “Manufactured Uncertainty” by Michaels and Monforton [3]) is described by Bero as a strategy where Vested Interests seek to influence the context of scientific research and the communication of that research to serve a commercial agenda. An example is the covert influence of the sugar industry over the research priorities of the National Institute of Dental Research (NIDR)’s National Caries (tooth decay) Program (NCP) in the United States, beginning in the mid-1960s. The sugar industry manipulated the science and policy on dental caries by funding research advantageous to their interests, cultivating relationships with NIDR leadership, consulting NIDR expert panel members, and submitting reports to NCP consultations which cited research advantageous to the industry’s policy position. Kearns et al. conclude that, through CPA, the sugar industry achieved their goal of convincing NIDR to omit research and dental health interventions from NCP that were contrary to the sugar industry’s interests [62].

2.5.2 Manufacturing doubt as an Informational CPA tactic

According to Michaels and Monforton, if the industry in question is unable to achieve Science Capture, the alternative approach is to “Manufacture Uncertainty”. That is, the promulgation of doubts or uncertainties around the scientific basis for regulation, thereby seeking to delay the onset of such policies [3; 63]. Synonymous terms that appear in the literature for this activity include: ‘manufactured doubt’, generation or creation of ‘scientific uncertainty’, and ‘scientific controversy’ [54; 59; 64]. These terms derive their meaning from the effect of the activity. They also derive meaning from the language chosen by a public relations executive

© Copyright by Lisa Margaret Buffinton 2019 | All Rights Reserved 21 Lisa Margaret Buffinton (ANU UID: U4699563) when they advised their tobacco industry client in 1969 on how to respond to research concerning the adverse effects of smoking tobacco:

Doubt is our product since it is the best means of competing with the ‘body of fact’ that exists in the mind of the general public. It is also the means of establishing a controversy. . . . If we are successful in establishing a controversy at the public health level, then there is an opportunity to put across the real facts about smoking and health [65, p. 4].

An acute area of Manufactured Doubt activity is the “Junk Science” movement. Michaels and Monforton explain the movement as follows:

Advocates for [scepticism of “Junk Science”…] allege that many of the scientific studies (and even scientific methods) used in the regulatory and legal arenas are fundamentally flawed, contradictory or incomplete, making it wrong or premature to regulate the exposure in question or to compensate the worker or community resident allegedly made sick by the exposure [3, p. S43].

Peter Huber’s colourful description of “Junk Science” is included in the Epigraph of this thesis (see page 1). Michaels and Monforton consider that the accusation of research being “Junk Science” is more effective in public than regulatory forums, ‘where attacks on the scientific basis of public health standards are weapons in the political opposition to the standards’ [3, p. S43]. The contrary evidence (which is favourable to industrial policy positions) is framed as “Sound Science” by defenders of risky products, like Huber and others [3, p. S43].

2.5.3 Strategic communication as an Informational CPA tactic

Policy decision-making is influenced by what interested parties have to say, and how they say it. Miller and Harkins argue that an Informational strategy to resist public policy (by Hillman and Hitt’s model [39]) is complemented by a firm’s political Communications strategy [64]. While an informational strategy involves the transmission of information directly to policy decision makers, the Communication strategy concerns the rhetoric and framing of the information that is transmitted. Their research into the political behaviours of the alcohol and food industries suggests that the political Communication strategy of a firm has bearing on all areas of political strategy proposed by Hillman and Hitt [39; 64]. Hawkins and Holden agree that Communication strategies are complementary to Hillman and Hitt’s model for corporate political activity [66]. This section discusses two Communication Strategies: rhetorical framing, and moral disengagement.

2.5.3.1 Rhetorical framing

The economic interest groups of risky product industries tend to act covertly to frame policy issues and their resolution [54]. Hawkins and Holden found the alcohol industry used the following rhetorical frames to shape debates on alcohol policy: they emphasis personal responsibility, not industry responsibility, and marginalise whole-of-population policy responses [66]. Kyprios Kypri and colleagues found similar industry framing created a united industry ‘voice’ in policy consultations submissions on a bill to increase the alcohol minimum purchasing age [67]. This united ‘voice’ effectively cut through the varied narratives from proponents of the Bill. Martino and colleagues’ analysis of alcohol industry submissions to an Australian government agency review of alcohol marketing regulations in 2012 found that the industry framed their arguments with an emphasis on the redundancy of regulation and lack of sufficient evidence to support further regulation [68]. Casswell notes how the alcohol industry’s rhetoric serves “stakeholder marketing” which portrays the industry as good corporate citizens and frames their arguments with a focus on drinkers’ responsibilities rather than the supply of alcohol [69].

2.5.3.2 Moral disengagement

The moral perspective that an industry adheres to is an integral part of the Communication strategy employed by risky product industries. Where routine performance of a task or activity results in harm to others, an ethical predicament exists if inflicting harm to others violates moral standards. White, Albert Bandura and Bero suggest that rhetorical framing that skirts such ethical predicaments is a key enabler of a firm or industry’s political activities [70]. They examined the political conduct of the tobacco, lead, vinyl chloride and silicosis-producing industries, coding for evidence of these industries utilising modes of moral disengagement (based on Bandura’s Manual for Coding Modes of Moral Disengagement) [71]. These modes are described in Table 2 below. Their research found that the chosen moral perspective of a firm or industry is expressed in their Communications strategy and tactics (such as rhetoric and framing) and is also present in the information they transmit to policy makers.

Table 2: Categories of moral disengagement, based on Bandura's Manual for Coding Modes of Moral Disengagement [70; 71].

Category Description Moral Moral, social, and economic justifications are used to sanctify injurious products and practices, justification and to challenge regulations. Viewing harmful activities as serving worthy ends not only eliminates any self-censure for performing them, but can even beget pride for doing them well. Euphemistic Sanitizing and convoluted language is used to make injurious products and practices labelling personally and socially acceptable. Moral self-sanctions can be reduced by cloaking activities in innocuous language. Advantageous The injurious activity or product is compared or contrasted to other activities or products that comparison make it appear benign, of little consequence, or of lesser negative effect. Displacement Individuals absolve themselves of personal responsibility for the harm caused by products and of practices by viewing their activities as ordered by others, and by creating systems of responsibility deniability that keep themselves intentionally uninformed. Challenges to public policies, regulations, and scientific findings are shifted to consultants, external scientists, and created organizations that serve as proxies for the industries in the public arena. Diffusion of Personal accountability for one’s contribution to harmful activities is reduced by group responsibility decision making and group action so no one really feels personally responsible, and by subdividing the various facets of the enterprise across different subsystems that seem blameless in detached isolation. Under widely diffused practices, no one feels personally accountable for the harm done. Disparaging, Self-censure for cruel conduct can be disengaged or blunted by attributing disparaging denigrating qualities to victims. Scientists documenting injurious effects and those calling for regulation critics, and of the industries are disparaged and invested with sinister motives. victims Attribution of Those who suffer the harmful effects of the products and practices are blamed for bringing blame the harm on themselves by their behavior, psychosocial deficiencies, and biological vulnerabilities. Other factors such as environmental conditions, genetic factors, and other diseases are blamed for the harmful effects. Minimizing, The harm resulting from the injurious action or products is minimized, distorted, or denied. denying, or Evidence of harm is discredited. As a result, there is little reason for self-censure to be distorting activated. consequences

2.5.4 Science capture

Science Capture describes CPA which achieves industry dominance of the scientific information environment [64; 72]. This tactic involves risky product industries funding, designing and coordinating their involvement in related scientific research, including academic medicine. According to Miller and Harkins, the intent of Science Capture is to skew the scientific evidence and manage the scientific enterprise [64]. Thomas Babor identified alcohol industry involvement in seven areas of alcohol science:

1. Sponsorship of research funding organizations; 2. Direct financing of university-based scientists and centres; 3. Studies conducted through contract research organizations;

4. Research conducted by trade organizations and social aspects/public relations organizations; 5. Efforts to influence public perceptions of research, research findings and alcohol policies; 6. Publication of scientific documents and support of scientific journals; and 7. Sponsorship of scientific conferences and presentations at conferences [73].

Though these activities were on the rise at the time of publishing this paper in 2009, Babor concluded that it was a small area of investment in the political strategies of alcohol firms, and so they were unlikely to contribute to alcohol Science Capture. A later paper, published in 2013, by Babor and Katherine Robaina, expressed elevated concern [72]. Their paper concludes that the alcohol industry intensified its scientific and policy-related activities under the banner of “Corporate Social Responsibility” initiatives that are instrumental to the economic interests of the alcohol industry (i.e. designed to maximise long-term profits) [72]. Babor and Robaina also found that the academic community had come into increasing conflict with the scientific views and policy positions of the alcohol industry [72].

Some research indicates that the political conduct of the alcohol industry in pursuing Science Capture is shared with the conduct of the tobacco industry. Jernigan’s research suggests that this has been partly facilitated by large corporations spanning both industries [74]. To this he cites the Phillip Morris CEO Issues Book: an internal industry text produced by Phillip Morris, a multinational tobacco company, which was released as part of litigation settlements in the 1990s. The CEO Issues Book contains strategic and tactical advice for addressing health regulation “issues” facing a company. The political activities of SABMiller (a beer-producing firm previously controlled by Phillip Morris) and the alcohol industry-funded International Center for Alcohol Policies, were cited as exemplar strategies in this Issues Book. Jernigan infers that product companies spanning more than one toxic product market can apply their effective political strategies in Science Capture and Manufacturing Doubt learnt in one domain (e.g. tobacco market) to other domains that they have a vested interest in (e.g. alcohol market) [75].

2.5.5 Policy capture

As noted by Miller and Harkins, and consistent with Hillman and Hitt’s general model for corporate political strategy, the ultimate aim of Informational CPA tactics (industrial science

© Copyright by Lisa Margaret Buffinton 2019 | All Rights Reserved 25 Lisa Margaret Buffinton (ANU UID: U4699563) manipulation, manufacturing doubt and strategic communication) is to achieve some form of “Policy Capture” [64]. That is, the dominance of the policy information environment. Babor warns that even if Science Capture is not achieved, these tactics may still achieve Policy Capture by obfuscating the credible scientific basis for effective health policies [73]. Policy capture goes hand-in-hand with “regulatory capture” – a concept explored in the discipline of economics. As described by Ernesto Dal Bo, regulatory capture has both a broad and a narrow interpretation:

According to the broad interpretation, regulatory capture is the process through which special interests affect state intervention in any of its forms […]. According to the narrow interpretation, regulatory capture is specifically the process through which regulated monopolies end up manipulating the state agencies that are supposed to control them’ [Bó, 2006: p. 203].

For the purposes of this dissertation, regulatory capture is treated as synonymous with policy capture. The tobacco and alcohol industries investigated for this research project are not ‘natural monopolies’, and hence the ‘broad’ interpretation of regulatory capture is applied.

Bakke and Endal’s investigation into the alcohol policies of four Sub-Saharan African states found deep industry involvement in alcohol policy development processes that was indicative of industrial Policy Capture [76]. The multinational alcoholic beverages industry used a conduit, the industry-funded International Center for Alcohol Policy (ICAP). ICAP was involved in various stages of government policy development, and used a range of Informational tactics (publication and direct distribution of research aligned with the industry’s preferred policy positions, facilitation of policy workshops with policy decision makers, and direct drafting of government policy documents) to ensure that alcohol policies advantageous to the industry were implemented [76]. This case echoes the tactics and success of the sugar industry in its decades-long engagement to “capture” the US National Caries Program [62].

Casswell argues that Communication strategies are a key factor in lending legitimacy to industries in policy making circles [69]. She argues that the Communication strategies of the alcohol industry explain the differential treatment of the tobacco and alcohol industries. While the tobacco industry is explicitly excluded from the United Nations High Level Meeting on Non-Communicable Diseases, the alcohol industry was present. It is perhaps not a coincidence that industry-favourable changes to the WHO Strategy to Reduce the Harmful Use of Alcohol were made after the World Health Assembly Executive Board met with ‘economic operators’

© Copyright by Lisa Margaret Buffinton 2019 | All Rights Reserved 26 Lisa Margaret Buffinton (ANU UID: U4699563) from the alcohol industry. In all, Casswell considers the effectiveness of alcohol industry CPA to be an explanation for the weak and irregular adoption of supply-side alcohol policies by governments worldwide.

2.6 Why and how industries use Expert Consultants as CPA agents

Literature on CPA refers to different entities who act as CPA agents of firms and industries. As discussed by Saloojee and Dagli, these entities include (but are not limited to): Industry Research groups; ‘Social Aspects Public Relations Organisations’ (SAPROs); media organisations; corrupt officials; lobbyists; lawyers; and expert consultants [59]. Literature on industries using consultants in particular to transmit information to regulators is relatively abundant in the context of the tobacco industry. This abundance followed the 1998 Master Settlement Agreement (MSA), descried below as:

[An] accord reached in November 1998 between the state Attorneys General of 46 states [of the United States, or U.S., of America], five U.S. territories, the District of Columbia and the five largest tobacco companies in America concerning the advertising, marketing and promotion of tobacco products [11].

Under MSA, millions of previously secret, internal documents of the tobacco industry were released to the public. Literature analysing MSA-released documents provide detailed accounts of how “Consultancy Programmes” were designed and executed globally by the tobacco industry, its lawyers and public relations advisors.

To complement their “confounder arguments”, Michaels and Monforton found that the industry took advice from public affairs advisory firms to emphasise controversies within tobacco control literature: ‘[Headlines] should strongly call out the point–Controversy! Contradiction! Other Factors! Unknowns!’ [77].

Extant literature has analysed the Latin American and Asian “ETS (environmental tobacco smoke) Consultant” programs of the tobacco industry. Barnoya and Glantz found that the industry used Expert Consultants to cast doubt on the scientific basis for harm-preventing regulation [78; 79]. Assunta and colleagues found evidence of tobacco industry consultants engaging in this intentional emphasis of scientific controversy in Asia [80]. Barnoya and Glantz also found this in their comparison of the European and Asian components of the tobacco

© Copyright by Lisa Margaret Buffinton 2019 | All Rights Reserved 27 Lisa Margaret Buffinton (ANU UID: U4699563) industry’s ETS consultants projects [79]. Hiilamo also found this to be the case in the conduct of the tobacco industry in Finland, citing an example where: ‘a clinical chemist wrote a comprehensive report for Amer-Tupakka, attacking studies showing hazards caused by ETS [environmental tobacco smoke]’ [81].

Studies on the pharmaceutical and tobacco industries’ sponsorship of scientific research shows that industry sponsorship of research is associated with favourable outcomes for the sponsor [82; 83; 84; 85]. The success of the industry’s influence over their consultants was reflected in a report from the lawyers of a tobacco company, Philip Morris, to their client about the Asian ETS Consultants Project in 1990:

Having now achieved a reasonable command of the relevant literature, and with a substantial level of enthusiasm for the project, our consultants are prepared to do the kinds of things they were recruited to do [86].

A possible explanation considered by Bero as to why industry-sponsored research seems to lead to favourable outcomes in the sponsored research for the industry sponsor is that it is poorly designed or has weak methodological quality. Lexchin et al. found an inconsistent association between industry sponsorship of scientific research and its methodological quality [82]. Bero considers that research outcomes can also be affected by the framing or social construction of the research question; the conduct of the study; and whether the industry- sponsored study findings have been published in peer-reviewed journals [33]. Bero cautions that:

The involvement of tobacco industry lawyers and executives in the design, conduct and dissemination of research has an impact on how controversy can influence public opinion or policy decisions [33].

This is related to another explanation as to why industry-sponsored research tends to favour the industry’s position: rhetoric. The industry’s interest in controlling the rhetoric on the scientific research and tobacco industry submissions is reflected in a memo from Philip Morris to the CEO of a Finnish tobacco company, Amer-Tupakka, in 1987:

We do not understand that a representative of Amer-Tupakka is not aware of the fact that there is not medical evidence showing a causal relationship between smoking and health hazards.… For obvious reasons we feel it is important that everyone is aware of how careful we need to be in everything we say [87].

Warner considers that some industry research and submissions make cryptic statements in relation to the scientific research that are ‘literally accurate [but] the intent and effect of their wording and their juxtaposition are to mislead’ [75].

It is well-documented in the literature that the tobacco industry relied on the credibility of their consultants and affiliated institutions to legitimise their consultancy programs’ outputs. An example cited by Warner is the tobacco industry directly sponsoring ‘biomedical research to lend credibility to the industry’s claim that it “remains committed to advancing scientific inquiry into the gaps in knowledge in the smoking controversy”’ [88]. In light of this strategic engagement of scientists, Warner concludes that:

Regardless of their individual motivations, however these scientists lend their names and credibility to a conscious tobacco industry strategy to use sponsorship of scientific research to sow doubts in the minds of the public about the dangers of cigarette smoking [75, p. 839].

Beyond the production of contrary research, the industry used their consultants to confer “innocence by association” to the industry. This is reflected in a case study by Warner examining a cigarette product liability trial. During this trial industry lawyers emphasised the reputations of institutions who were members of the tobacco industry-funded Council for Tobacco Research-U.S.A. (CTR) and recipients of CTR grants [75, p. 841]. Research by Barnoya and Glantz, Assunta and colleagues, and Tong and Glantz assert that the selection criteria for recruiting consultants in the Latin American and Asian ETS Consultants Projects similarly served to distract from objective consideration of the vested interests affecting the integrity of research proposed by the industry [79; 80; 89].

2.7 Research opportunities exploring how firms use Expert Consultants as CPA agents

There are two gaps in extant literature on this topic. First, research identifying common attributes of how firms use expert consultants as agents of Informational CPA. Second, research examining the extent to which these attributes can be identified in the practices of the alcohol industry in Australia.

The body of literature identifying commonalities in how industries manipulate science has focused on broader CPA strategies. Bero has proposed a taxonomy of six industry science manipulation strategies:

• Fund research that supports the interest group position;

• Publish research that supports the interest group position; • Suppress research that does not support the interest group position; • Criticise research that does not support the interest group position; • Disseminate interest group data or interpretation of risk in the lay press; and • Disseminate interest group data or interpretation of risk directly to policy makers [33].

This taxonomy is based on research examining the practices of the tobacco industry. White and Bero applied this taxonomy to other industries, and found that these strategies were present across the tobacco, pharmaceutical, lead, vinyl chloride, and silicosis-generating industries [90]. David Jernigan and Thomas Babor have derived similar sets of tactics from a study into strategies used by alcohol producers to influence national and global science and policy [74] and alcohol science [73]. Citing Bero’s research [33] and using Hillman and Hitt’s framework for CPA [39], Savell and colleagues conducted a systematic review of how the alcohol industry attempts to influence marketing regulations through Informational, Constituency-building, Legal and Financial CPA strategies [91]. They identified 13 common tactics used by both the tobacco and alcohol industries when acting to influence marketing regulation.

Taxonomies relevant to the alcohol industry context, such as those by Jernigan, Babor and Savell are helpful and instructive. However, extant literature has not gone to a deeper level of inquiry to examine the common attributes of how firms and industries have used expert consultants as agents of their Informational CPA strategies. Extant literature investigating the tobacco industry’s use of expert consultants (outlined in section 2.6 on page 27) has this depth, but has not produced a set of common attributes of this practice. Such a tool may enable cross-examination of this tactic in other industries, including the alcohol industry, in the same fashion that Bero’s science manipulation taxonomy has enabled cross-industry comparisons [33; 90; 91]. These taxonomies may be built upon to capture the nuanced characteristics of industrial consultancy programmes. This gap in extant literature is filled by this thesis.

Policy makers, independent researchers and regulatory authorities are subjected to these activities by firms and their CPA agents. A more granular understanding of this practice and its characteristics may support policy makers and regulatory authorities to be aware and identify Informational CPA mechanisms used by vested interests to influence decision making.

2.8 Chapter 2 (Literature Review) references

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3 Research Approach

3.1 Introduction

The aim of this chapter is to align the research approach with the research questions driving this project, as the approach shapes the results responding to the research questions and aims. These research questions are:

A. Why and how do industries use Expert CPA Consultants as agents of industrial CPA interests? B. How has the alcohol industry in Australia used Expert CPA Consultants as agents of industrial CPA interests? C. What are the characteristics of how firms and industries use Expert CPA Consultants?

The purpose of this chapter is to describe the scope and research strategy of this project. The research strategy encompasses the theoretical rationale, theoretical lenses, methodology and research methods employed to explore the three research questions.

3.2 Scope

The project scope is focused on the tobacco and alcohol industries for two primary reasons. First, there is a greater availability of relevant literature and primary sources on the tobacco industry’s conduct, as compared to that of other industries. Second, alcohol and tobacco are comparable case studies: both are legal consumer products in many countries, and both are specially-regulated to avoid or mitigate health risks associated with their consumption.

In the parlance of Jane Lewis and Jane Ritchie, the scope of this thesis is focused producing research that serves both a “contextual” and “diagnostic” purpose. That is, this thesis seeks to identify ‘the form and nature of what exists’ (i.e. Contextual purpose) and – if enabled by the data – examine ‘the reasons for, or causes of, what exists’ [92, p. 307]. This research project does not seek to appraise the effectiveness of the phenomena under study, nor does it seek to identify strategies that may affect the phenomena under study [92, p. 307].

3.3 Research strategy

The research strategy for this project spans the theoretical rationale, theoretical lenses, methodology and research methods of this project. This strategy is illustrated in Figure 4 and is outlined below.

The theoretical rationale of this project takes a Critical Realist view of the phenomena under study. The ontological and epistemological views of this project are explained in section 3.4.

Two social theory lenses frame the interpretation of the social phenomena under study: Biopolitics or Biopower theory, and Performativity. Three regulatory theories frame this study: Nodal Governance Theory, the ‘Force of Ideas’ approach, and Interest Group Theory of regulatory space and policy development. The theoretical lenses are explained in section 3.5.

The research logic of this project applies inter-subjective, inter-textual, pragmatic and neutral research methodologies. The methodologies are explained in sections 3.6.

The research methods for data collection and data analysis complement these theoretical priorities and methodological intentions. The data collection and data analysis methods are explained in sections 3.7 and 3.8.

Figure 4: Theoretical rationale diagram

THEORETICAL THEORETICAL LENS METHODOLOGY METHODS RATIONALE

PERFORMATIVITY Inter-subjectivity DATA COLLECTION DATA ANALYSIS Perlocutionary ONTOLOGY Comprehensive Literature review; Foundationist effects literature search. Inter-textuality Framework &Taxonomy NODAL Selective sampling of Development methods; GOVERNANCE primary sources from Qualitative systematic Pragmatism online archives and EPISTEMOLOGY review; INTEREST GROUP GIPA requestors. Critical Realism THEORY Textual analysis; Neutrality Comparative analysis. Force of New Ideas

3.4 Theoretical Rationale

As reflected in Figure 4, this research project takes Critical Realist view of the phenomena under study. The Oxford Dictionary of Philosophy defines Critical Realism as follows:

[Critical Realism is] Any doctrine reconciling the real, independent, objective nature of the world (realism) with a due appreciation of the mind-dependence of the sensory experiences whereby we know about it (hence, critical) [93].

Ontologically, this thesis posits that there is a reality that can be tangibly observed through experiments which empirically reveal the clinical, biological effects of tobacco and alcohol on organic bodies. Epistemologically, this thesis posits that the definition of tobacco and alcohol harms and risks are socially-constructed ‘institutional facts’. According to Blackburn, institutional facts refers to facts that ‘only exist in a society with certain conventions, rules, or norms in place’ [94]. By extension, this thesis posits that regulatory interventions designed to influence the incidence and severity of tobacco and alcohol harms and risks are socially constructed. That is, the social presence of alcohol-related harms and the risk of them occurring are observed through the interpretations and experience of others. These experiences and interpretations are influenced by the agency of individuals and the structures in which they operate. Hence, this thesis posits that industries use Expert CPA Consultants to influence what are accepted as ‘institutional facts’ by shaping how regulators interpret, define and respond to consumer product harms and risks.

3.5 Theoretical lenses

As reflected in Figure 4, there are three concepts that provide a lens for understanding or interpreting the data and research results. The first, performativity – particularly the sub-branch of “perlocutionary” communication – lends a social theory perspective. Second, Networked or Nodal Governance Theory provides a regulation and governance perspective. Third, the ‘force of new ideas’ and ‘interest group theory’ provide a perspective on policy development drivers. The contributions of these theories to this thesis are outlined in the sections below.

3.5.1 Performativity and “perlocutionary” communication

In his seminal 1962 book, How to Do Things with Words, British philosopher John L. Austin posits his theory of ‘speech acts’: that words can be a mode of action [95]. Austin proposes three ways in which words can ‘do things’: Locutionary acts (the act of saying something), Illocutionary acts (the action by saying something), and Perlocutionary acts (an effect is produced by saying something). French philosopher, Jacques Derrida, believed that the words in and of themselves – not extrinsic (e.g. institutional) factors – give an actor or speaker performative influence [96]. Whereas Pierre Bordieu – also a French philosopher – believed that the possession (or lack) of social capital within the actor or speaker determined the success or failure of their performative action [97]. German sociologist and philosopher, Jürgen

Habermas, was particularly interested in Austin’s Illocutionary and Perlocutionary speech-acts [98, p. 271]. Habermas sought to make a distinction between communicative action (oriented to mutual understanding) and strategic action (action oriented to ulterior ends) [99]. This thesis explores how firms employ CPA Expert Consultants to produce specialist, technical information on their products’ risks to produce certain consequential effects on others.

3.5.2 Nodal Governance

Nodal governance theories posits a polycentric concept of governance and regulation. This decentred view acknowledges that even ultimate state authority is built upon other actors conferring or validating that authority [100, p. 165]. According to Wood and Shearing:

Governing nodes are organisational sites (institutional settings that bring together and harness ways of thinking and acting) where attempts are made to intentionally shape the flow of events. Nodes govern under a variety of circumstances, operate in a variety of ways, are subject to a variety of objectives and concerns, and engage in a variety of different actions to shape the flow of events. Nodes relate to one another, and attempt to mobilise and resist one another, in a variety of ways so as to shape matters in ways that promote their objectives and concerns. Nodal governance is diverse and complex [101, p. 149].

This theory helps to explain how Expert Consultants – as agents of an industry’s Informational CPA strategies – operate within regulatory spaces alongside other actors.

3.5.3 The force of new ideas and interest group theory

The mechanism by which these nodal actors influence policy developments can be explained by ideational, interest-based, habitat and internal factors. Christopher Hood’s concept of The Force of New Ideas is one approach to explaining policy developments. A Force of Ideas is at play ‘Where stress is placed on the force of new ideas that upset the status quo in some way – perhaps through demonstrations of experimental evidence, logical force, or rhetorical power’ [102, p. 18]. Another explanation for policy developments is Interest Group Theory, ‘Where emphasis rests on the pressures of interests that act in pursuit of developments that suit their own purposes’ [102, p. 18]. These theories are lenses for understanding how Expert Consultants – as agents of an industry’s Informational CPA strategies – seek to influence policy developments.

3.6 Methodology

As reflected in Figure 4, there are several compatible, complementary research principles underpinning this research strategy: inter-subjectivity, inter-textuality, pragmatism and neutrality. As explained below, all four are consistent with the Foundationist-Critical Realist theoretical rationale for this project.

Inter-subjectivity is an approach that seeks to enhance shared understanding between different observers of the same phenomena. This project focuses on the perspectives of observers who sit within the industry – including the perspective of industrial CPA Expert Consultants themselves. As described by Kate Anderson:

[Inter-subjectivity] not only points to the ways in which we share understanding with others but also indicates that meaning and understanding lie along a continuum of mutual intelligibility… At an analytic level, intersubjectivity is a construct that allows one to conceive of how others can be understood when analyzing interactions, texts, or artifacts [sic]’ [103].

This is pertinent to the research purpose of seeking to understand how CPA Expert Consultants have been used by industries to influence regulatory outcomes. In addition, this research project employs a complementary intertextual approach to understanding documentation of how CPA Expert Consultants have been used by industries to influence regulatory outcomes.

Inter-textuality is an approach that interprets written media as ‘fragments of a larger web of textuality’ [104, p. 429]. This approach is defined by Daniel Chandler and Rod Munday an approach where:

Each text exists in relation to others, and textual meanings are dependent on such relations… Texts provide contexts such as genres within which other texts may be created and interpreted. Ever-changing contexts [also] generate new meanings [105].

This echoes the sentiment of television critic, John Fiske, who interprets intertextuality as a theory whereby ‘any one text is necessarily read in relationship to others and that a range of textual knowledges is brought to bear upon it. [106, 108]. Intertextuality can be a function of an audience interpreting texts independent of the author’s intentions, and also as a function of an author intentionally crafting a text to echo qualities of other media. As noted by Brian Ott and Cameron Walter, ‘Intertextuality has come to describe both the general practice of decoding [texts] and a specific strategy of encoding [texts]’ [104, p. 430]. This research engages an inter-textual research logic. In this project, the researcher is positioned as both: an

‘audience’ decoding primary sources authored by tobacco and alcohol industry personnel and consultants; and as an ‘author’ encoding a taxonomy with the qualities of primary tobacco industry sources.

Pragmatism drives research to be fit-for-purpose and the practical limitations of the project. As explained by Jane Ritchie and Jane Lewis, in the context of applied social research:

[Pragmatism is] the value of choosing the most appropriate research method or methods to address specific research questions… quality and rigour in research practice have more to do with choosing the right research tools for the job than with limiting ourselves to combining only those research methods which are viewed as philosophically consistent [107, p. 21].

This apt description echoes Roy Bhaskar’s advice when applying critical realism to research methods: ‘avoid any commitment to the content of specific theories and recognize the conditional nature of all its results’ [108, p. 6]. This extends from Bhaskar’s view that philosophy sets the parameters of possibility for empirical social science.

One such philosophy is that the principle of neutrality should be observed when conducting all research. Conscious neutrality is a goal that enables identification and avoidance of bias in qualitative observations and interpretations of phenomena. As described by Ritchie and Lewis:

A key feature is a striving to be as objective and neutral as possible in the collection, interpretation and presentation of qualitative data… We also recognise that while researchers can 'strive' for neutrality and objectivity, we can never attain this aspiration fully (nor indeed, do we believe that this is possible in other types of social research) [107, p. 20].

The aspiration and concession of achieving neutrality are consistent with this project’s critical realist epistemological stance.

There are two limitations to the design of this research project. First, the data collection was intentionally limited to two industries (the tobacco and alcohol industries). While this enables comparison of the two industries, the research findings and their implications for other industries beyond the alcohol and tobacco industries would require application of the findings to data from those other industrial contexts. Second, the results of the research are – though supported by the data collected for this project – subject to the point of view and lived experience of the researcher. As noted in the paragraph above, given the subjective nature of qualitative research, neutrality is sought after but realistically may never be purely attained. The treatment for this limitation is reflexivity on the part of the research, as expressed in this thesis – particularly in the discussion chapter.

The research methods used to execute this project (described in the next section) were chosen in accordance with the intersubjective, intertextual, pragmatic and neutral methodologies employed for this project.

3.7 Data Collection Methods

Data collection methods were adapted from established methods - chosen to suit the analytical task at hand and resource and time constraints for conducting the analysis. The Literature Review data collection method involved a comprehensive search of literature relevant to public health, regulation and governance, non-market activities and corporate political activities. The Taxonomy Development data collection method involved purposive sampling of literature analysing internal tobacco industry documents concerning their use of CPA Expert Consultants. The Taxonomy Application Case Studies data collection method involved purposive sampling of documents that were released to the public via the Government Information Public Access (GIPA) Act NSW, Australia. The following sections provide detailed descriptions of these data collection methods.

3.7.1 Data collection for the literature review

The Literature Review data collection method involved a comprehensive search of literature relevant to public health, regulation and governance, non-market activities and corporate political activities. Relevant literature on this topic was initially collected from three channels: peers in this field of research; literature introduced through coursework at the Australian National University (ANU)’s School of Regulation and Global Governance; and supplementary searches through online databases of peer-reviewed literature. The databases accessed for the literature search included:

• ANU Super Search [112]; • ProQuest [113]; and • Scopus [114].

Key search terms included: “Corporate Political Activity”, “Non Market Activity”, “Consultants”, “Industry”.

This project benefited from a bibliography provided by Narelle Robertson, a Research Assistant to Professor Peter Miller and colleagues, who worked on the ‘Corporate political activity of

© Copyright by Lisa Margaret Buffinton 2019 | All Rights Reserved 41 Lisa Margaret Buffinton (ANU UID: U4699563) tobacco, alcohol and gambling companies in Australia’ research project for the Australian Research Council (ARC) [109]. This thesis complements their second area of investigation: formal documentary submissions to state and federal government bodies by tobacco, alcohol and gambling industry organisations and companies. While their analysis focuses on submissions to public inquiries, this research project is focused on the use of CPA Expert Consultants to trasmit information to regulatory officers in closed proceedings.

3.7.2 Data collection for the Taxonomy Development analysis

To collect data for the Taxonomy Development analysis, a Search Strategy was developed. A Search Strategy is ‘a structured organisation of terms … [which] shows how these terms combine in order to retrieve the best results’ from a database [110]. This strategy was executed by following a Search Process. Similar types of data points had to be collected to be compatible with the chosen data analysis approach (i.e. the Framework Method combined with Taxonomy Development Method). (The data analysis approach is described in section 3.8). As noted by Nicole Gale and colleagues: ‘[The] Framework Method cannot accommodate highly heterogeneous data, i.e. data must cover similar topics or key issues so that it is possible to categorize it’ [111, p. 2]. By narrowing the scope and data collection, this allowed for a manageable project scale whilst supporting comparison of results spanning different geographic regions. These activities are described in the following sections.

3.7.2.1 Search Strategy

This Search Strategy is depicted in Table 3. The in-scope articles concerned the employment of CPA Expert Consultants as ‘supposedly independent experts critical of tobacco control measures’ [12, p. 902]. This is understood to be the use of technical ‘experts’, ‘scientists’ and/or ‘consultants’ who are paid (directly or indirectly) to act as agents of the tobacco industry’s Informational CPA (transmitting information to influence regulatory outcomes). Truncated and wildcard searches (signified by an asterisk - *) were employed to find variations of some search terms. The data analysed was limited to articles that cited and analysed internal tobacco industry documents, such as those released through the Master Settlement Agreement (MSA) (discussed in section 2.6). The exclusion criteria (as shown in Table 3) was limited by type of studies and data analysed. Publications which did not cite or analyse internal tobacco industry documents were also excluded.

Table 3: Article search strategy for Taxonomy Development data collection

ANU Super Limit search to Full text, peer-reviewed materials. Search [112] Limit source types to Scholarly journals, Government and Official Database Publications, reports. searches ProQuest [113] As above. Scopus [114] As above. Tobacco Tobacco Industry Industr* Search terms Consultants Consultan* Programme Program* Content type Include: peer-reviewed scholarly journal articles, reports and conference papers; Book chapter; books/eBooks; Government document; Journal/eJournal; Journal article; Publication; Report; Technical Report; Transcript; Web Resource. Language English Only Time period No time limit Subject CPA Expert Consultants to the tobacco industry Inclusion Content or Must concern the employment of, or the act of employing, CPA Expert criteria nature of article Consultants. Data analysed Must cite and analyse primary sources in the form of internal tobacco industry memos, reports and correspondence.

Contextual Should represent a diverse set of regulatory contexts (e.g. countries (i.e. level/geographic Local, regional, state, national and/or supra-national level). context Discipline Any Type Type of studies Abstract only; No full text available; Duplicates; Newspaper articles; Book Exclusion reviews; Dissertations; Conference proceedings criteria Data analysed Studies that do not cite and analyse internal tobacco industry memos

3.7.2.2 Search Process

The Search Process involved four sub-processes: Identification, Screening, Eligibility and Inclusion. The Identification sub-process returned a total of 5,809 records through the ANU SuperSearch database search, 4,431 records through the ProQuest database search, and 14 records through the Scopus database search. Of the returned records, the first 100 records (listed in ‘order of relevance’, according to each search engine) were considered and duplicate records between the 100 most relevant records for each search engine were excluded. An additional 68 records (shared with the researcher by academic peers) were included in the initial sample. The Screening sub-process removed 22 duplicate records. Of the remaining 260 records, 147 were then excluded according to title and abstract content. Of the 113 remaining records, 89 records were excluded after the full-text was perused and found to not meet the inclusion criteria. As a result, 24 studies were subsequently included for review. This Search Process is depicted in Figure 5 below.

Figure 5: Taxonomy Development search process

IDENTIFICATION Top 100 (by relevance) records identified through ANU SuperSearch (n=100) and ProQuest (n=100) databases; Records identified through Scopus database searching (n=14) SCREENING Additional Records shared with researcher (n=68)

SCREENING Duplicates removed (n=22) SCREENING Records after duplicates removed (n=260) SCREENING Records excluded according to title and abstract (n=147) SCREENING Full-text articles reviewed for eligibility (n=113) ELIGIBILITY Full-text excluded as note meeting inclusion criteria (n=89) INCLUDED Studies included for review (n=24)

The sample of data for this analysis included the 24 records that met all inclusion criteria. These articles were published across 12 peer-reviewed journals, including: American Journal of Public Health, Bulletin of the World Health Organization, Circulation, Environmental Health Perspectives, European Journal of Public Health, Journal of Epidemiology & Community Health, Journal of Preventive Medicine & Public Health, Lancet, Nicotine & Tobacco Research, PLoS Medicine, Public Health Reports, and Tobacco Control. Each article cites 2-113 internal tobacco industry sources available through online archives, such as:

• University of California San Francisco Truth tobacco industry Documents archive (formerly known as the Legacy Tobacco Documents Library) [115]; • Philip Morris USA Inc. Public Document Site [116]; • Tobacco Institute Document Site [117]; and • Tobacco.org Tobacco Documents Online archive [118].

3.7.3 Data collection for the Application of the Taxonomy to Australian alcohol industry cases

The data collected for the three case studies was sourced from 103 distinct official documents released to the public through GIPA processes. The search strategy selected documents with the following attributes to be included in the Taxonomy Application data sample:

• Primary sources authored by representatives of, or consultants to Woolworths Limited (an Australian liquor retailer); and • Sources concerning regulatory proceedings in the state of NSW, Australia.

These conditions narrowed the scope of the study to one firm (Woolworths) and one regulatory jurisdiction (NSW). As noted earlier, similar types of data points were collected for the data sample to be compatible with the data analysis approach. As shown in the search process diagram (Figure 6), 22 of the 103 distinct official documents were included in the review sample. By narrowing the scope and data collection, this allowed for a manageable project scale whilst supporting comparison of results between the three cases.

The GIPA data collected for all three cases (see Table 4) was composed of correspondence (i.e. e-mails and letters) and advisory documents (i.e. submissions, memos, detailed reports and letters). The GIPA data collected for Case A were sourced from an online archive published on a web log site, DrinkTank [15]. The 12 relevant Case A files contained 17 unique primary source texts (primary sources). The GIPA data collected for Cases B and C were provided to the researcher by the Foundation for Alcohol Research and Education (FARE). Five (5) of the Case B and C files contained five (5) primary sources. The data collected for Cases B and C were supplemented by publicly-available copies of the regulatory authority’s decisions on the regulatory matters at hand.

Figure 6: Taxonomy application data search process

IDENTIFICATION All primary source records (records) identified in the two FOI release files (n=317) SCREENING Duplicate records excluded (n=214) SCREENING Records after duplicates removed (n=103 – sorted by relevance) SCREENING Records excluded because they did not contain content authored by the industry, its representatives and/or its consultants. (n=81) SCREENING Records reviewed for eligibility (n=22) ELIGIBILITY Full-text records excluded for meeting inclusion criteria (n=0) INCLUDED Records included for review (n=22)

Table 4: Volume and date range of GIPA documents and files pertaining to each case

Case Description of the case Count of relevant primary Documents’ sources contained in GIPA files date range A Government review of a policy concerning 17 sources in 12 files 31/01/2013- liquor promotion in NSW, Australia 30/08/2013 B Regulatory authority’s decision on a liquor Three (3) sources in three (3) files 31/03/2015- licence application in NSW, Australia 02/06/2015 C Regulatory authority’s decision on a liquor Two (2) sources in two (2) files 24/08/2015- licence application in NSW, Australia 23/11/2015

3.8 Data analysis methods

Data analysis methods were adapted to suit the research questions and aims, as well as the resource and time constraints of this project. The Literature Review employed a standard ‘Literature Review’ method. The Taxonomy development (TD) and Taxonomy Application (TA) approach employed a hybrid of the Framework Method and the Taxonomy Development Method. The following sections describe these methods.

3.8.1 Analytical method for the literature review

The Literature Review employed a standard Literature Review method for data analysis. Per Maria Grant and Andrew Booth’s ‘SALSA’ (Search AppraisaL Synthesis Analysis) typology of literature reviews, the standard Literature Review method was chosen for this project. The standard ‘Literature Review’ used for this project was designed to:

• Comprehensively search for published literature; • Appraise quality by including literature that possesses some degree of permanence and which may have been subject to peer review; • Synthesise findings in a narrative; and • Analyse data by exploring themes and concepts [119, p. 94].

This method allows a flexible yet comprehensive survey of key concepts which form the backdrop to this research project. To identify seminal articles, the bibliographies of articles initially collected were cross-examined for common citations appearing in three or more articles in the initial literature collection.

3.8.2 Analytical method for the Taxonomy Development and Taxonomy Application components

The Taxonomy and Taxonomy Application methods are a form of “cluster analysis”. Cluster Analysis is ‘the generic name for a wide variety of procedures that can be used to create a classification’ [120]. According to Mark Aldenderfer and Roger Blashfield, the uses of cluster analysis can be subsumed under four goals:

(1) development of a typology or classification, (2) investigation of useful conceptual schemes for grouping entities, (3) hypothesis generation through data exploration, and (4) hypothesis testing, or the attempt to determine if types defined through other procedures are in fact present in a data set [120].

The Taxonomy and Taxonomy Application methods were chosen to develop a generalisable framework for understanding how firms use CPA Expert Consultants to influence regulatory proceedings. This framework was developed as a taxonomy informed by primary sources authored by the tobacco industry. The hypothetical generalisability of the taxonomy was tested by applying it in the analysis of primary sources authored by the alcohol industry in Australia.

The cluster data analysis method used for this thesis was informed by two complementary approaches to developing systems that analyse the characteristics of phenomena:

• “Framework Method” - as described by Jane Ritchie and Jane Lewis [92; 107], and by Nicola K. Gale and colleagues [111]. • “Taxonomy Development Method” - as described by Robert Nickerson, Upkar Varshney and Jan Muntermann [121].

These methods were chosen for their suitability in responding to the research questions, and for their structure which helps to ‘make analytic choices and make interpretive strategies visible and auditable’ [111, p. 2]. The following sections provide some background to these methods, and how they were adapted to form the analytical procedure employed for this research project.

3.8.2.1 Frameworks and taxonomies

According to Schwarz and colleagues, frameworks organise objects by establishing the ‘set of assumptions, concepts, values, and practices that constitutes a way of understanding the research

© Copyright by Lisa Margaret Buffinton 2019 | All Rights Reserved 47 Lisa Margaret Buffinton (ANU UID: U4699563) within a body of knowledge’ [122, p. 41]. Lewis and Ritchie describe their Framework Method as a grounded, inductive analytical process that has five (5) distinct yet interconnected stages: Familiarisation; Identifying a thematic framework; Indexing; Charting; and Mapping and

Interpretation [92]. Lewis and Ritchie contend that, while the process is ordered and systematic, it ‘relies on the creative and conceptual ability of the analyst to determine meaning, salience and connections’ [92, p. 310]. Further,

The strength of an approach like ‘Framework’ is that by following a well-defined procedure, it is possible to reconsider and rework ideas precisely because the analytical process has been documented and is therefore accessible. The approach involves a systematic process of sifting, charting and sorting material according to key issues and themes [92, p. 310].

Gale and colleagues applied Lewis and Ritchie’s Framework Method to a clinical context [111]. They consider a key advantage of the Framework Method is that ‘[…] the ability to compare with ease data [sic] across cases as well as within individual cases is built into the structure and process of the Framework Method’ [111, p. 2].

There are many interchangeable terms used to refer to taxonomies (e.g. classification scheme, typology, or taxonomic system). This research project follows the ‘common practice’ of using the term ‘taxonomy’ to refer to both a systematic process and also to the application of a systematic process to a given subject [16, p. 338]. The development of a taxonomy is a mixed methods form of ‘Qualitative Systematic Review’ of primary sources. As described by Maria Grant and Andrew Booth, such reviews are a ‘Method for integrating or comparing the findings from qualitative studies [… while looking] for ‘themes’ or ‘constructs’ that lie in or across individual qualitative studies’ [119, p. 94]. Per Grant and Booth’s ‘SALSA’ typology of literature reviews, the mixed methods Qualitative Systematic Review employed for the TD and TA analyses included:

• Searching for primary sources by employing selective or purposive sampling (as described in sections 3.7.2 and 3.7.3 of this thesis); • Appraising quality to mediate primary sources not for inclusion/exclusion; • Synthesising findings in a graphic mapping supported by qualitative, narrative synthesis; and • Analysing data by employing thematic analysis, and may include conceptual models [119, p. 94].

Nickerson and colleagues’ Taxonomy Development Method (TDM) has parallels with the Framework Method [16]. TDM has seven (7) steps (see Figure 7) [121, p. 345]. As a method and process for conducting analysis, TDM elaborates on activities implied in the Framework Method. Such implied activities include: definition of meta-characteristics and ending conditions, selection of either an inductive or deductive approach, and determination of ending condition fulfilment. Similarly, TDM has limitations that are bridged by the Framework Method (i.e. ‘Interpretation’).

These methods were chosen and adapted for this research project for their complementarity in terms of shared attributes and coverage of the other’s limitations.

Figure 7: Nickerson and colleagues’ Taxonomy Development Method [121, p. 345].

3.8.2.2 Procedure for data analysis

The analytical process for this thesis builds on the methods described in section 3.8.2.1. This procedure follows TDM – illustrated in Figure 7 – with two elaborated stages. These are: ‘Preparation’ replacing the ‘Start’ step; and ‘Interpret resultant taxonomy’ replacing the ‘End’ step. Both additional steps are drawn from the Framework Method.

3.8.2.2.1 Step 1: Prepare In ‘Prepare’, data is collected for the generation and application of the taxonomy. Nickerson and colleagues consider ‘the availability of data about objects under study and the knowledge of the researcher about the domain of interest’ to be the foundation of this process [121, p. 343]. This stage blends the ‘Start’ stage described in Nickerson and colleagues’ [121] (see Figure 7) with the ‘Familiarisation’ stage described by Gale and colleagues [111] and Ritchie and Lewis [92]. This research project undertook four sequential preparation activities. First, relevant literature was reviewed to develop a broad foundation of contextual knowledge (See chapter 2 from page 11 onwards). Second, relevant ‘data about objects under study’ was collected (See section 3.7 from page 41 onwards). Third, the researcher familiarised themselves with the data collected. Fourth, the researcher equipped and familiarised themselves with the technology and equipment to be used. This project used N-Vivo (software for analysing unstructured data), Microsoft Office Excel (software for analysing relational, structured data), and printed documents that were manually marked with ink or graphite. The same approach was applied to both the taxonomy development (TD) and taxonomy application (TA) analyses.

3.8.2.2.2 Step 2: Set parameters Per Nickerson and colleagues’ TDM, two analytical parameters for developing taxonomies need to be defined [121]. First, the “meta-characteristic” of the taxonomy. Second, the “ending conditions” for the iterative analytical process. The parameters set for the TD and TA activities of this project were identical to ensure consistency between the analytical activities. The parameters are listed in Table 5 and are explained below.

A meta-characteristic focuses the selection of characteristics in line with a common theme, to avoid ‘naïve’ incorporation of unrelated characteristics. As explained by Nickerson and colleagues:

Each characteristic should be a logical consequence of the meta-characteristic. The choice of the meta-characteristic should be based on the purpose of the taxonomy […]. The choice of the meta-characteristic must be done carefully as it impacts critically the resulting taxonomy [121, p. 343].

This concept is present and used across other disciplines [120]. The research purpose of this project is to develop a set (or taxonomy) of characteristics that explain how industries use Expert Consultants as CPA agents. Hence, the meta-characteristic for the TD and TA analyses

© Copyright by Lisa Margaret Buffinton 2019 | All Rights Reserved 50 Lisa Margaret Buffinton (ANU UID: U4699563) was the same: A meta-characteristic that explains how and why the phenomenon under study (i.e. industrial use of expert consultants as Informational CPA agents) occurs.

An iterative method facilitates useful revisions of taxonomy characteristics as the researcher subsequently encounters new, relevant information. Such revisions should not go on into perpetuity, nor should they be concluded without reason. There are both objective and subjective ending conditions. All five of Nickerson and colleagues’ subjective ending conditions, and six of Nickerson and colleagues’ objective ending conditions, were used in the data analysis [121, p. 322]. According to Ritchie and Lewis, frameworks developed using their Framework Method are ‘grounded’, ‘dynamic’, ‘systematic’, ‘comprehensive’, ‘enable easy retrieval’, ‘allow between- and within-case analysis’, and ‘can be viewed and judged by people other than the primary analyst’ [92, p. 310]. Hence, the ending conditions chosen for this research are compatible with the key features of Ritchie and Lewis’ Framework Method.

Table 5: Parameters set for the Taxonomy Development (TD) and Taxonomy Application (TA) analyses

Parameters set TD TA Meta-characteristic: Explains how and why the phenomenon under study (i.e. ✓ ✓ industrial use of expert consultants as Informational CPA agents) occurs. Ending conditions: Subjective ✓ ✓ Concise ✓ ✓ Robust ✓ ✓ Comprehensive ✓ ✓ Extendable ✓ ✓ Explanatory ✓ ✓ Ending conditions: Objective ✓ ✓ No object is classified under every characteristic of every dimension ✓ ✓ No new dimensions or characteristics were added in the last iteration ✓ ✓ No dimensions or characteristics were merged or split in the last iteration ✓ ✓ Every dimension is unique and not repeated ✓ ✓ Every characteristic is unique within its dimension ✓ ✓ Each cell is unique and not repeated ✓ ✓ 3.8.2.2.3 Step 3: Select approach This stage is a Decision point, depicted as a diamond shape in Figure 7 on page 49. The ‘empirical-to-conceptual’ Deductive Approach (i.e. steps 4e, 5e and 6e in Figure 7) was the chosen method for developing a taxonomy of how the tobacco industry used Expert Consultants as CPA agents. The ‘conceptual-to-empirical’ Inductive Approach (i.e. steps 4c, 5c, and 6c in Figure 7) was the chosen method for applying the Taxonomy to another context: the alcohol industry in Australia.

3.8.2.2.4 Step 4: Implement approach Nickerson and colleagues propose that there are two approaches to developing a taxonomy: either a Deductive Approach or an Inductive Approach [121]. The Deductive Approach was employed in the TD activities. This approach includes three sequential activities illustrated in Figure 7:

• 4e. Identifying (new) subset of objects; • 5e. Identifying common characteristics and group objects; and • 6e. Grouping characteristics into dimensions to create (revise) taxonomy [121].

The initial subset of objects was composed of the characteristics of industrial manipulation of scientific research, as described by Lisa Bero [33], Jenny White [90] and David Jernigan [74]. What these two taxonomies describe are informational strategy tactics which mobilise firm or industry resources (including scientific consultants) to achieve “Science Capture”, or “Policy Capture”, or both. These are described in section 2.7 of the Literature Review and are listed below:

1. Fund research that supports the interest group position [33]; 2. Publish research that supports the interest group position [33]; 3. Suppress research that does not support the interest group position [33]; 4. Criticise research that does not support the interest group position [33]; 5. Disseminate interest group data or interpretation of risk in the lay press [33]; 6. Disseminate interest group data or interpretation of risk directly to policy makers [33]; 7. Producing scholarly publications with incomplete, distorted views of the science underlying alcohol policies [74]; 8. Pressuring national and international governmental institutions [74]; and 9. Encouraging collaboration of public health researchers with industry–funded organizations and researchers [74].

The second sub-activity, ‘Identify common characteristics and group objects’ is described by Nickerson and colleagues as an activity whereby:

[The] researcher identifies common characteristics of these objects. The characteristics must be logical consequences of the meta-characteristic. […]. The characteristics must, however, discriminate among the objects […]. The knowledge and intuition of the researcher or other experts will be needed to identify the characteristic [121, pp. 345-346].

The third sub-activity, ‘Group characteristics into dimensions to create taxonomy’ is described by Nickerson as an activity where:

Once a set of characteristics has been identified [… the] resulting groups form the initial dimensions of the taxonomy. […] Each dimension contains characteristics that are mutually exclusive and collectively exhaustive [121, p. 346].

The Inductive Approach was applied to the TA activities. This approach includes three sequential activities:

• 4c. Conceptualising (new) characteristics and dimensions of objects; • 5c. Examining objects for these characteristics and dimensions; and • 6c. Creating (revising) taxonomy.

The first step, ‘Conceptualising (new) characteristics and dimensions of objects’ used the results of the Empirical-to-Conceptual analysis of tobacco industry Expert CPA Consultants (the ‘Resultant Taxonomy’). The second step, ‘Examining objects for these characteristics and dimensions’ applied the Resultant Taxonomy to another industry context: the alcohol industry. The researcher carefully read each article in the selected sample, and digitally highlighted passages of text against the initial set of objects using NVivo. The third step, ‘Creating (revising) taxonomy’ was limited to noting (in a separate ‘Unique alcohol industry Characteristics’ dimensional node) additional characteristics that were unique to the alcohol industry. No changes were made to the Resultant Taxonomy when analysing the alcohol industry cases.

3.8.2.2.5 Step 5: Fulfil ending conditions At this stage, the taxonomy is tested against the subjective and objective ending conditions set in ‘Step 2’ (see Table 5). Nickerson and colleagues note that this process is iterative:

[After…] the first iteration, it is likely that none of the objective conditions will be met so the process is repeated. In subsequent iterations the objective conditions must be evaluated and if not met, the process is repeated […]. This process could even result in the elimination of some dimensions and/or characteristics if they are determined not to be applicable. The result is the next version of the taxonomy [...] [121, p. 346].

The ‘Fulfil ending conditions’ stage is a Decision point, depicted as a diamond shape in Figure 7.

3.8.2.2.6 Step 6: Interpret resultant taxonomy At this stage, the key characteristics of the taxonomy are collated, mapped and interpreted. As noted by Ritchie and Lewis, this stage synthesises the siloed analysis with its broader theoretical and topical contexts:

It is here that the analyst returns to the key objectives and features of qualitative analysis […], namely: defining concepts, mapping [the] range and nature of phenomena, creating typologies, finding associations, providing explanations, developing strategies, etc. [92, pp. 320-321].

This Commencing/Terminating activity is depicted as an ovoid shape in Figure 7.

3.9 Other processes and protocols

Other processes and protocols that shaped the design of this research project included: ethics approval; and peer validation of text analysis.

3.9.1 Ethics approval

Ethics approval for the use of the data collected for this research project was granted on 5 June 2017 by ANU.

3.9.2 Peer validation of text analysis

In support of exercising conscious neutrality in conducting this research, the framework application results were validated through informal peer review. Half a dozen peers were approached to read a one-page excerpt of the primary sources being analysed. They were asked to indicate which elements of the taxonomy were expressed in the excerpts. Their interpretations were compared against the results of the framework application conducted for this project. In all six peer reviews, there was strong resonance between their interpretation and the results from the project. This resonance gave some assurance that the interpretations were reasonable in comparison to others.

3.10 Chapter 3 (Research approach) references

15. Giorgi, C., & Ferguson, A. (2014, 20/07/2014). Shopper dockets – the OLGR investigation. DrinkTank. Retrieved from http://drinktank.org.au/2014/05/shopper-dockets-the-olgr- investigation/ 33. Bero, L. A. (2005). Tobacco industry manipulation of research. Public Health Reports, 120(2), pp. 200-208. 74. Jernigan, D. H. (2012). Global alcohol producers, science, and policy: The case of the international center for alcohol policies. American Journal of Public Health, 102, pp. 80-89. doi:10.2105/AJPH.2011.300269

90. White, J., & Bero, L. A. (2010). Corporate Manipulation of Research: Strategies Are Similar across Five Industries. Stanford Law & Policy Review, 21(105), p. 133. 92. Ritchie, J., & Spencer, L. (2002). Qualitative data analysis for applied policy research. Chapter 12 in A. M. Huberman & M. B. Miles (Eds.), The Qualitative Researchers’ Companion (pp. 305- 329). Thousand Oaks, CA: SAGE. 93. Blackburn, S. (Ed.) (2016). Critical realism. The Oxford Dictionary of Philosophy. Oxford: Oxford University Press. Retrieved from: http://www.oxfordreference.com/view/10.1093/acref/9780198735304.001.0001/acref- 9780198735304-e-793 94. Blackburn, S. (Ed.) (2016). Institutional facts. The Oxford Dictionary of Philosophy. Oxford: Oxford University Press. Retrieved from: http://www.oxfordreference.com/view/10.1093/acref/9780198735304.001.0001/acref- 9780198735304-e-1663 95. Austin, J. L. (1962). How To Do Things with Words. Cambridge, MA: Harvard University Press. 96. Derrida, J. (1988 [1972]). Signature Event Context in Limited Inc. Evanston, IL: Northwestern University Press. 97. Bordieu, P. (1991). Language and Symbolic Power. Cambridge: Polity. 98. Lloyd, M. (2011). From Linguistic Performativity to Social Performance: The development of a concept. Chapter 22 in G. Delanty & S. P. Turner (Eds.), Routledge International Handbook of Contemporary Social and Political Theory (pp. 270-279). London and New York: Routledge. 99. Habermas, J. (1984 [1981]). The Theory of Communicative Action (Vol. 1). London: Heinemann. 100. Holley, C., & Shearing, C. (2017). A nodal perspective of governance: Advances in nodal governance thinking. Chapter 10 in P. Drahos (Ed.), Regulatory Theory: Foundations and Applications (pp. 163-180). Canberra: ANU Press. 101. Wood, J., & Shearing, C. (2007). Imagining Security. London: Willan. 102. Hood, C. C. (1994). Explaining Economic Policy Reversals. Chapter 1 in B. UNKNOWN (Ed.), Unknown book title. Unknown publisher: Unknown Publisher. 103. Anderson, K. T. (2008). Intersubjectivity. The SAGE Encyclopedia of Qualitative Research Methods. Online Edition. Retrieved from http://sk.sagepub.com/reference/research/n236.xml Date accessed: 29 June. 104. Ott, B., & Walter, C. (2000). Intertextuality: Interpretive practice and textual strategy. Critical Studies in Media Communication, 17(4), pp. 429-446. doi:10.1080/15295030009388412 105. Chandler, D., & Munday, R. (Eds.). (2016). Intertextuality. A Dictionary of Media and Communication (Second edition ed.). Oxford, UK: Oxford University Press. Retrieved from: http://www.oxfordreference.com/view/10.1093/acref/9780191800986.001.0001/acref- 9780191800986-e-1421 106. Fiske, J. (1987). Television culture. New York: Routledge. 107. Ritchie, J., Lewis, J., & al., E. (2003). Qualitative Research Practice: A Guide for Social Science Students and Researchers. Thousand Oaks, CA: SAGE Publications. 108. Bhaskar, R. (1979). The possibility of naturalism: A philosophical critique of the contemporary human sciences. Atlantic Highlands, NJ: Humanities Press. 109. Livingstone, C., Hancock, L., Harper, T., et al. (2016). Corporate political activity of tobacco, alcohol and gambling companies in Australia. Melbourne, VIC: Monash University, Foundation for Alcohol Research and Education, Cancer Council Victoria. 110. University of Leeds. (2017). Developing your search strategy. Retrieved from https://library.leeds.ac.uk/researcher-literature-search-strategy Date accessed. 111. Gale, N. K., Heath, G., Cameron, E., et al. (2013). Using the framework method for the analysis of qualitative data in multi-disciplinary health research. BMC Medical Research Methodology, 13, pp. 117-124. doi:10.1186/1471-2288-13-117 112. Australian National University Library. (No date). About SuperSearch. Retrieved from https://anulib.anu.edu.au/find-access/supersearch Date accessed.

113. ProQuest. (N.d.). ProQuest Search (Online Database). Archive: Ann Arbor, MI, ProQuest. Available from: http://www.proquest.com/. Date accessed: 29/04/2018. 114. Elsevier B.V. (No date). Scopus (Online Database). Date Published: No date. Archive: London, Amsterdam, New York, RELX Group. Available from: https://www.scopus.com/home.uri. Date accessed: 02/06/2017. 115. University of California San Francisco. (2017, 15 December 2017). Truth Tobacco Industry Documents archive. Retrieved from https://www.industrydocumentslibrary.ucsf.edu/tobacco/ Date accessed. 116. Philip Morris USA Inc. (2017, 1 December 2017). Philip Morris USA Inc. Public Document Site. Retrieved from www.pmdocs.com Date accessed. 117. Tobacco Institute. (2010). Tobacco Institute Document Site. Retrieved from http://www.tobaccoinstitute.com/tipublichome.asp Date accessed: 04/01/2018. 118. Tobacco.org. (2018, 2018). Tobacco Documents Online archive. Retrieved from http://archive.tobacco.org/Documents/documents.html Date accessed. 119. Grant, M. J., & Booth, A. (2009). A typology of reviews: an analysis of 14 review types and associated methodologies. Health Information & Libraries Journal, 26(2), pp. 91-108. doi:10.1111/j.1471-1842.2009.00848.x 120. Aldenderfer, M. S., & Blashfield, R. K. (1984). Cluster Analysis. Retrieved from http://methods.sagepub.com/book/cluster-analysis doi:10.4135/9781412983648 121. Nickerson, R. C., Varshney, U., & Muntermann, J. (2013). A method for taxonomy development and its application in information systems. European Journal of Information Systems, 22(3), pp. 336-359. doi:10.1057/ejis.2012.26 122. Schwarz, A., Mehta, M., Johnson, N., et al. (2007). Understanding frameworks and reviews: a commentary to assist us in moving our field forward by analyzing our past. The Database for Advances in Information Systems, 38(3), pp. 29-50. doi:10.1145/1278253.1278259

4 Taxonomy Development

4.1 Introduction

The aim of this chapter is to examine and describe industry Informational CPA practices that use Expert Consultants as CPA agents (“CPA Consultants”). Based on an analysis of tobacco industry memos, a Taxonomy is presented, comprising a set of “mutually exclusive, collectively exhaustive” characteristics of how firms use CPA Consultants. The Taxonomy identifies the ‘form and the nature of what exists’ in terms of how firms use CPA Expert Consultants; and it examines ‘reasons for, or causes of, what exists’ in these same terms [92, p. 307]. The results of this analytical task produced five key findings:

1. Firms use CPA Consultants when: a. Interest in information associating a product with health risks grows beyond academia into other ‘non-market’v domains (litigators, public opinion, regulators); and b. These broader interests are likely to adversely affect the market performance of the sponsor firm. 2. There are 23 Characteristics of how the tobacco industry used CPA Expert Consultants. 3. These Characteristics can be grouped among four thematic Dimensions. 4. Each Characteristic was supported by between six and 22 of the 24 sources articles in the sample. 5. This Taxonomy produced 15 new Characteristics that extend beyond those described by Lisa Bero and David Jernigan in the extant literature [33; 74].

This chapter describes the results of the Taxonomy resulting from the Taxonomy Development data analysis, and detailed descriptions of the four dimensions (and characteristics) of this Taxonomy.

v See section 2.3 for an explanation of ‘non-market’ domains of interest to commercial entities.

4.2 Resultant Taxonomy and its Four Dimensions

The resultant taxonomy is composed of 23 unique Characteristics (Cn) grouped among four Dimensions (Dn) (see Table 6). The four Dimensions are: D1 - Drivers for using CPA Expert Consultants; D2 - Strategic use of CPA Expert Consultants; D3 – Tactical activities performed by CPA Expert Consultants; and D4 - Qualities of the recruited CPA Expert Consultants. Table 6 reflects the resultant taxonomy in terms of the:

• Labels for its Dimensions and Characteristics (‘Dimension(Dn)/Characteristic (Dn-Cn)’); • Quantity of sample sources in which the Characteristic was presented (‘sources (n)’); • Quantity of Sources as a proportion of All Sources in the sample (n=24) (‘sources (%)’); • Number of sections of highlighted text coded to each characteristic (‘References (n)’); and • Number of Industry documents cited in the References (‘Internal Industry Records Cited (n)’).

The following Dimensional sections and Characteristic sub-sections describe what the characteristic represents (identifying the ‘form and the nature of what exists’) and examines where each characteristic lies, and why it exists (identifying ‘reasons for, or causes of, what exists’) [1, p. 307].

Table 6: Resultant Taxonomy, its four Dimensions and 23 Characteristics

)

n TEXT TEXT

DIMENSION(Dn)/CHARACTERISTIC (Dn-Cn) 24 of

(

SOURCES SOURCES

RECORDS RECORDS

CITED ( CITED

INDUSTRY INDUSTRY

HIGHLIGHTS HIGHLIGHTS SOURCES ( SOURCES D1. Drivers for using CPA Expert Consultants 15 63% 101 97 D1-C1. Growing academic research base associating product with health 7 29% 14 9 risks D1-C2. Growing threat of litigation in light of D1-C1 7 29% 16 13 D1-C3. Depreciating public image and regulatory alliances in light of D1-C1 6 25% 14 11 D1-C4. Building regulatory pressure in light of D1-C1 12 50% 43 50 D1-C5. Market performance under threat from D1-C1 8 33% 14 14 D2. Strategic use of CPA Expert Consultants 22 92% 687 724 D2-C1. Resist and delay product restrictions in given jurisdiction 13 54% 41 42 D2-C2. Neutralise policy influence of adversaries 14 58% 52 54 D2-C3. Enhance credibility of sponsor industry 13 54% 47 49 D2-C4. Generate uncertainty in product risk discourse 21 88% 214 191 D2-C5. Subvert scientific processes 19 79% 192 227 D2-C6. Use lawyers to coordinate Consultancy Programs 13 54% 77 66 D2-C7. Collaborate with competitors to fund and implement Consultancy 11 46% 26 44 Programs D2-C8. Recycle Consultancy Programs in numerous jurisdictions 10 42% 38 51 D3. Tactical activities performed by CPA Expert Consultants 22 92% 640 407 D3-C1. Produce and suppress research on product risks 21 88% 200 175 D3-C2. Monitor, Review or Criticise extant research on product risks 17 71% 82 54 D3-C3. Disseminate industry interpretation of risks 18 75% 270 97 D3-C4. Facilitate industry relationships with decision-makers 12 50% 77 72 D3-C5. Troubleshoot Public Relations (PR) issues facing the sponsor industry 6 25% 11 9 D4. Qualities of CPA Expert Consultants 22 92% 538 609 D4-C1. Paid by the industry for services 20 83% 109 147 D4-C2. Presentable as an independent, third-party scientist or academic 22 92% 194 204 D4-C3. Affiliated with reputable organisations and institutes 18 75% 137 154 D4-C4. Serve as researchers and as PR or Government Relations (GR) 12 50% 56 51 resources D4-C5. Work outputs favour industry policy position 15 63% 42 53 Total 24 100% 1,326 1,430

* Internal Industry records cited in Highlights were identified by their Bates Numbers and Tobacco Institute

Document identification numbers. These numbers are ‘unique identifying number[s] assigned to documents produced in litigation’ [14, p. 910], and aid retrieval of through the industry document archives listed on page 3.

4.3 Dimension 1 (D1) - Drivers for using CPA Expert Consultants

Firms use CPA Expert Consultants to address unique information-based business ‘threats’ [123, p. 1]. These threats are technical or scientific information finding a business practice or product

© Copyright by Lisa Margaret Buffinton 2019 | All Rights Reserved 59 Lisa Margaret Buffinton (ANU UID: U4699563) to be unacceptably harmful to consumers and/or third parties. Of the 24 source articles analysed, nearly two-thirds (n=15, 63%) support this and contained 101 in-text highlights citing 97 industry records. There are five characteristics of the drivers for firms using CPA Expert Consultants to address this threat. The descriptive, contextual and diagnostic details of each characteristic are elaborated in the following sub-sections.

4.3.1 Firms face ‘Information Threats’ whose influence may “spill over” beyond academic domains

D1-C1. Growing academic research base associating product with health risks

Firms use CPA Expert Consultants when there is a growing academic research base associating their products with unacceptable consumer and third-party risks. This view was expressed in 14 highlights spanning over a quarter (n=7, or 29 per cent) of the 24 source articles analysed. These highlights were informed by nine internal Industry records, a sample of which are shown below.

What is this driver? Academic research into tobacco health risks was–and continues to be– generated by esteemed academic and clinical researchers affiliated with:

• Government research and policy agencies (e.g. Surgeon General of the United States [80], United States Environmental Protection Agency, universities [124, p. 310]); • Intergovernmental research and policy agencies (e.g. World Health Organization International Agency for Research on Cancer [89, p. ii119]); and • Independent, non-government research agencies (e.g. the Occupational Health and Safety Association [125, p. 591], and universities [124, p. 310]).

As these entities researched and published details of the risk and its mechanics, this led to institutional responses that isolated the Industry. As noted in an internal Overview of the European Consultant Program:

1. The threats. Regulators, the public and the media are bombarded with claims that [Environmental Tobacco Smoke, or Second-hand Smoke] is both a health hazard and the principal cause of poor [Indoor Air Quality]. The results include gradual reductions in the social acceptability of smoking and greater pressures for public and workplace smoking bans [123, p. 1]. [Emphasis in original primary source].

Over time, fewer and fewer entities beyond the Industry were opposing the developing risk evidence. In the view of the tobacco industry:

[Regulators are]… unlikely to receive any information supportive of the industry’s position on ETS [Environmental Tobacco Smoke, or Second-Hand Smoke] unless the industry itself provides it [126, p. 1].vi

Where does it lie, and why does it exist? A meeting between tobacco industry personnel from the United Kingdom (UK), Germany, Japan, and the United States of America (USA) concluded that “more industry sponsored research [was] needed”[127, p. 6] and noted the ‘difﬁculty now in getting science published, if that science seems “pro” ETS’ [128, p. 1]. Reasons for using CPA Expert Consultants in response to this technical, Information-based threat and isolation included:

1. To secure scientists who could act as potential experts for Industry, 2. To secure goodwill support on critical issues, 3. To push scientific extremists into isolation, 4. To have work published which is suited to re-establish a balanced view in the scientific community, i.e., defuse critical issues [129, p. 1].

4.3.2 Firms face litigation supported by information associating their products and practices with health risks

D1-C2. Growing threat of litigation in light of D1-C1

Firms use CPA Expert Consultants when there is a growing threat of litigation in light of research associating their product and practices with risk. This view was expressed in 16 highlights spanning over a quarter (n=7, or 29 per cent) of the 24 source articles analysed. These highlights were informed by 13 Internal Industry Records, a sample of which are shown below.

What is this driver? The tobacco industry was particularly concerned about increasing product liability, workers’ compensation, class action and other litigation due to tobacco smoke exposure [130].

Where does it lie, and why does it exist? The tobacco industry used CPA Expert Consultants to contest the growing evidence of risk (D1-C1) in their capacity ‘as scientific advisors, [and] as

vi Environmental Tobacco Smoke (ETS), also known as “second-hand smoke”, is the smoke produced by primary tobacco smokers, which is then inhaled by third parties.

© Copyright by Lisa Margaret Buffinton 2019 | All Rights Reserved 61 Lisa Margaret Buffinton (ANU UID: U4699563) a resource to find “witnesses”-if needed- for liability litigations’ [131, pp. 1-2]. This internal memo of British American Tobacco (BAT) – a multinational tobacco company – reflects the perceived values of these Consultants:

Of course, the tobacco industry can respond [to the information threat], but it will have less credibility and in some countries we may prefer to leave independent scientists to respond to protect us from a potential legal backlash [132, p. 2]

This echoes the interest of Philip Morris (PM), another multinational tobacco company, in using CPA Expert Consultants to produce information that carried “legal effectiveness,” “credibility,” and “bargaining value with authorities” [133, p. 1].

4.3.3 The credibility of the Information Threat weakens the credibility of the firm, adversely affecting its public image and alliances

D1-C3. Depreciating public image and regulatory alliances in light of D1-C1

Firms use CPA Expert Consultants when their public image and regulatory alliances are depreciating in light of research associating their product and practices with risks. This view was expressed in 14 highlights spanning a quarter (n=6, or 25 per cent) of the 24 source articles analysed. These highlights were informed by 11 Internal Industry Records, a sample of which are shown below.

What is this driver? The tobacco industry was particularly concerned about consumers and allies shunning the industry and its products as they became aware of the health risks associated with smoking. This was expressed by PM in their 1988 draft Action Plan for ETS in Europe and Adjacent Areas, 1989–1992:

[Erroneous] perceptions of the [second-hand smoke] issue increase the social pressure against smoking, encourage non-smokers to become anti-smokers, and foster an atmosphere conducive to both governmental and private restrictions upon smoking [134, p. 1]

Where does it lie, and why does it exist? The information threat (D1-C1) posed economic and political threats to the industry. This insight was presented to the board of PM in 1992 by Craig Fuller, senior vice president Corporate Affairs of PM:

[I]f... the Administrator of the [US Environmental Protection Agency] . . . issues the Risk Assessment which asserts that [ETS] is carcinogenic, we have a very difficult problem. Our allies who have held the line in buildings, restaurants, shopping areas, sports complexes and other areas will almost certainly be forced to rethink their position. [135, p. 11]

CPA Expert Consultants served to counter the root of these threats in acting as experts and – as noted regarding D1-C1 – by securing ‘goodwill support on critical issues’ for the industry [129, p. 1].

4.3.4 The Information Threat generates a stronger imperative for regulators to place controls on marketing and consumption of a risky product

D1-C4. Building regulatory pressure in light of D1-C1

Firms use CPA Expert Consultants when regulatory pressure on the firm is increasing in light of research associating their product and practices with risks. This view was expressed in 43 highlights spanning half (n=12, or 50 per cent) of the 24 source articles analysed. These highlights were informed by 50 Internal Industry Records, a sample of which are shown below.

What is this driver? Products found to carry health risks to the consumer and to others may be regulated to ameliorate these risks. This may affect the consumption and/or profitability of the product bearing the risks [136, p. 3].

Where does it lie, and why does it exist? The vice chairman of the PM board argued that regulation (informed by academic research into tobacco health risks) should be resisted to address the expansion of tobacco controls into numerous domains:

ETS is the driving force behind smoking restrictions in the workplace, on airlines and other forms of public transportation, and in virtually all areas offering public access. If present trends continue, smokers will have fewer and fewer opportunities to enjoy a cigarette. This will have a very direct and major impact on consumption [136, p. 3].

Combined with litigation (D1-C2), the building regulatory pressure concerning product risks (D1-C1) were deemed ‘the most dangerous development to the viability of the tobacco industry’ [137, p. 6]

4.3.5 The non-market influence of the Information Threat adversely affects the market performance of the firm

D1-C5. Market performance under threat from D1-C1

Firms use CPA Expert Consultants when the market performance of the firm is under threat from research associating their product and practices with risks. This view was expressed in 14 highlights spanning a third (n=8, or 33 per cent) of the 24 source articles analysed. These highlights were informed by 14 Internal Industry Records, a sample of which are shown below.

What the rationale is. Market performance is gauged by–inter alia–sales, profitability and share price. Regulatory responses to tobacco harms effectively reduced tobacco consumption and sales by 21-29 per cent, according to estimates from the tobacco industry [138, p. 1; 139].

Where it lies, and why it exists. In 1993, a presentation to the office of vice president Government Relations for PM, Kathleen Linehan, highlighted the ‘tremendous’ financial impact of tobacco controls which reduce tobacco consumption: ‘3 to 5 fewer cigarettes per day per smoker will reduce annual manufacturer profits [by] a billion dollars plus per year’ [140, p. 4]. Such an effect on sales was deemed ‘devastating’ by the tobacco industry [141, p. 8]. CPA Expert Consultants served to counter the root of these threats (D1-C1) to the viability of the tobacco industry.

4.4 D2 - Strategic use of CPA Expert Consultants

The analysis found that Firms adopt special Approaches to using CPA Expert Consultants as CPA agents challenging the Information Threat (D2). Of the 24 source articles analysed, all but two (n=22, or 92 per cent) contained highlights which support this Dimension. The 22 supporting source articles contained 687 in-text highlights citing 724 industry records. There are eight characteristics of firms’ strategic use of CPA Expert Consultants:

• Of which, there are three strategic Outcomes they seek to achieve. o First, firms use CPA Expert Consultants to resist and delay restrictions on the marketability of the risky product (D2-C1). o CPA Expert Consultants are used neutralise the policy influence of the proponents of the Information Threat (D2-C2).

o Firms use CPA Expert Consultants to enhance the credibility of Industry- preferred policy positions concerning the health risks of its products, and regulatory responses to those risks (D2-C3). • Of which, there are five characteristics of firms’ Approaches to using CPA Expert Consultants in the pursuit of these Outcomes: o First, firms use CPA Expert Consultants to generate uncertainty in the product risk discourse (D2-C4) and subvert scientific processes (D2-C5). o Firms also use external lawyers to coordinate their use of CPA Expert Consultants (“Consultant Programs”) (D2-C6), and collaborate with their competitors to operate Consultant Programs in response to mutual Information Threats faced by the industry at large (D2-C7). o Firms also recycle Consultant Programs in numerous jurisdictions to pre-empt or respond to the Information Threat gaining influence in other markets (D2- C8).

4.4.1 Firms use CPA Expert Consultants to resist and delay restrictions on the marketability of the risky product

D2-C1. Resist and delay product restrictions in given jurisdiction

Firms use CPA Expert Consultants to resist and delay product controls based on research associating their product with health risks. This view was expressed in 41 highlights spanning over half (n=13, or 54 per cent) of the 24 source articles analysed. These highlights were informed by 42 Internal Industry Records, a sample of which are shown below.

What is this strategy? Resisting and delaying tobacco controls was an explicit, strategic element of the multinational Consultancy Programs of the tobacco industry:

In its basic research programme and its mobilisation of scientiﬁc consultants and engineers in each… market, [Science and Technology, PM Europe] is producing a ‘‘product’’ – scientists and scientiﬁc knowledge – for use by the PM company president in each market. In each market, it would be the responsibility of the company president to use this product to [the] best advantage in resisting smoking restrictions in his market [142, p. 6].

Where does it lie, and why does it exist? CPA Expert Consultants were used to influence the scientific basis for tobacco control policies and risk assessment standards [1; 143; 144]. This extended to standards for tobacco products and their production inputs, such as pesticides

[33]. CPA Expert Consultants as a ‘third party defence’ were integral to the success of the tobacco industry in resisting and delaying tobacco controls. As stated At a PMI Corporate Affairs World Conference in 1984:

If you are not willing to create vehicles to ride on, to put things together in fact to invent things that did not exist before, coalitions, associations, institutes, seminars, meetings, [etc.]… you cannot be successful [145, p. G-6].

4.4.2 CPA Expert Consultants are used to neutralise the policy influence of Information Threat proponents

D2-C2. Neutralise policy influence of adversaries

Firms seek to neutralise the policy influence of ‘adversaries’ [131, p. 1] through their use of CPA Expert Consultants. This view was expressed in 52 highlights spanning over half (n=14, or 58 per cent) of the 24 source articles analysed. These highlights were informed by 54 Internal Industry Records, a sample of which are shown below.

What is this strategy? This strategy used their CPA Expert Consultants to perform tasks (See D3, p. 75) that served ‘To push scientific extremists into isolation’ [129, p. 1]. Here, “scientific extremists” were credible entities who transmitted information on smoking-related risks and harm prevention controls not favoured by the tobacco industry. These entities include academics, media outlets and journalists, and governments and regulators.

Where does it lie, and why does it exist? The tobacco industry directed their Consultants– as peers of ‘scientific extremists’–to discourage academic inquiries critical of the Industry and its products:

The consulting academic scientists will work with other credentialed critics to publish articles in scientific journals "reminding" their colleagues in the scientific community of the deficiencies and limitations of their profession, and exhorting them to avoid politicizing their work [...] [146, p. 4].

CPA Consultants would also seek to neutralise the policy influence of journalists. The Industry sought to secure their ‘consultant’s [sic] positions as the regional experts to whom journalists should turn when the issue is indoor air quality’ [147, p. 2]. For example, in 1993 a tobacco industry media symposium on indoor air quality was held in Ecuador, and sponsored by the peak body for Central and South American journalists [148]. The symposium speakers were Industry Consultants who presented the view that tobacco controls do not resolve indoor air

© Copyright by Lisa Margaret Buffinton 2019 | All Rights Reserved 66 Lisa Margaret Buffinton (ANU UID: U4699563) quality health risks [148; 149]. The event was attributed to ‘numerous articles [published] in local newspapers’ and the ‘focus of several local television and radio programs’ [147, p. 1].

CPA Consultants also produced contrary research findings that worked to confound and neutralise the policy and influence the agendas of governmental and regulatory bodies. For example, in 1995 EHS Consultants–a firm operated by a covert tobacco industry Consultant– was awarded a $1million contract to study air quality for the Hong Kong Government. According to a solicitor for PM, the success of EHS was enabled by Industry-funded platforms, such as the Centre for Indoor Air Research (CIAR):

I am convinced, in part because officials of the Environmental Protection Department in Hong Kong have said so, that EHS was awarded the contract in part because of indoor air quality monitoring work that they had completed previously for CIAR. That previous work showed, incidentally, that smoking does not contribute significantly to indoor air problems here [150, p. 10].

Having Industry CPA Consultants perform risk evaluations for governments was considered to be ‘precisely the sort of result the ETS Consultants Program is designed to achieve’ [151, pp. 1- 2].

4.4.3 Firms use CPA Expert Consultants to enhance the credibility of Industry-preferred policy positions on the regulation of their products’ health risks

D2-C3. Enhance credibility of sponsor industry

Firms use CPA Expert Consultants to enhance the credibility of the firm in discourse concerning the risks associated with their products and business practices. This view was expressed in 47 highlights spanning over half (n=13, or 54 per cent) of the 24 source articles analysed. These highlights were informed by 49 Internal Industry Records, a sample of which are shown below.

What is this strategy? This strategy uses CPA Expert Consultants to legitimise policy positions that align with the interests of the industry, thereby helping to ‘buttress the industry’s position’ [152, p. 4]. As noted in the general objectives of the Industry ETS Consultancy Programmes document: ‘Although it is essential for the industry to speak up about its positions, there are some things that are better left to independent scientists to express’ [132, p. 1].

Where does it lie, and why does it exist? The need to enhance the credibility of the industry was identified as a remedy to its various public image issues (see D1-C3):

It has been apparent to the industry for some time that we do not have sufﬁcient credibility to put forward a position on ETS (or any other issue for that matter) unless we can identify independent scientists who are saying the same thing. If independent scientists back up our position, it becomes more credible, not only to the general public and the media, but to politicians and other decision-makers [132, p. 1].

By investing in the work of “independent” scientists, the tobacco industry presented itself as a ‘leader in seeking the answers to the questions regarding smoking and health’ [153, p. 146] and ‘advancing scientific inquiry into the gaps in knowledge in the smoking controversy’ [88, p. 5]. The intended result is to leverage the Consultants’ social capital in order to ‘increase the credibility of the Company in its relations with[…] governmental authorities’ [131, p. 2] thereby legitimising the role of the Industry in tobacco policy development.

4.4.4 Firms use CPA Expert Consultants to generate uncertainty in the product risk discourse

D2-C4. Seek to generate uncertainty in product risk discourse

Firms use CPA Expert Consultants to generate uncertainty in the product risk discourse. This view was expressed in 214 highlights spanning over four-fifths (n=21, or 88 per cent) of the 24 source articles analysed. These highlights were informed by 191 Internal Industry Records, a sample of which are shown below.

What is this strategy? This strategy, as proclaimed in an internal tobacco industry document in 1969, was viewed as a product of, and for, the industry: ‘‘Doubt is our product… Spread doubt over strong scientific evidence and the public won’t know what to believe’ [65, p. 4].

Where does it lie, and why does it exist? The strategic use of experts by the tobacco industry to generate uncertainty in the product risk discourse was neatly described by H. Lee Sarokin, a US District Court Judge, who presided over a cigarette product liability lawsuit in New Jersey, USA:

[The tobacco industry] entered into a sophisticated conspiracy... organized to refute, undermine, and neutralize information coming from the scientific and medical community and, at the same time, to confuse and mislead the consuming public in an effort to encourage existing smokers to continue and new persons to commence smoking [154].

4.4.5 Firms use CPA Expert Consultants to subvert scientific processes

D2-C5. Seek to subvert scientific process

Firms use CPA Expert Consultants to subvert scientific processes surrounding research into their product and practice risks. This view was expressed in 192 highlights spanning over three- quarters (n=19, or 79 per cent) of the 24 source articles analysed. These highlights were informed by 192 Internal Industry Records, a sample of which are shown below.

What is this strategy? CPA Consultants would generate information that appears unbiased and verified by credible entities, whilst actually being partisan and influenced by vested interests. Confirming the influence of the tobacco industry over CPA Expert Consultants’ research, the contract excerpt below presupposes that:

[Firm representatives…] can continuously inform themselves about the research projects, in particular the research methods, the experimental design and the gained interim results as well as the appropriate usage of the research funds, and that they can view all relevant documents [155].

To avoid detection of their influence, it was insisted that CPA Consultants operate ‘at arm’s length’ from the Industry ‘in order to protect the Industry or individual Companies from litigation’ [133, p. 1]. Consultants who disclosed industry connections in their publications were reminded to consult their funder ‘regarding such mentioning before a paper is sent out to a journal or other publisher’ [156, p. 1].

Where does it lie, and why does it exist? Consultants’ favourable research findings were disseminated through Industry-funded ‘vehicles’ [145, p. G-6]. One example is Indoor Air International (IAI). IAI published its own scientific journal (Indoor Air International Journal), sponsored meetings and conferences, and served ‘as an independent and accepted source of ideas and research regarding [Indoor Air Quality] to the public and scientiﬁc community’ [157, p. 5]. In a performance review, one Consultant highlighted their ‘Invitation to contribute as lecturer to toxicology postgraduate training program in Thailand’ and their ‘Contribution to development of training curriculum as expert [sic] in inhalation toxicology’’ as examples of their contribution to the objectives of the industry [158, p. 1]. Subverting scientific processes in

© Copyright by Lisa Margaret Buffinton 2019 | All Rights Reserved 69 Lisa Margaret Buffinton (ANU UID: U4699563) these ways shifted credible entities’ away from ‘unfavourable’ tobacco control positions. Ultimately, this served to ameliorate the ‘information threat’ of D-C1.

4.4.6 Firms also use external lawyers to coordinate their use of CPA Expert Consultants

D2-C6. Use lawyers to coordinate Consultancy Programs

Firms use lawyers to coordinate their Consultancy Programs’ activities. This view was expressed in 77 highlights spanning over half (n=13, or 54 per cent) of the 24 source articles analysed. These highlights were informed by 66 Internal Industry Records, a sample of which are shown below.

What is this strategy? Lawyers representing the industry would coordinate the Consultancy Programs, acting ‘as much as a public relations agency as they do to provide legal advice’ [132, p. 6]. The law firms served ‘as an intermediary between PM [Phillip Morris] and the scientiﬁc consultants and engineers’ [142, p. 2]. Industry lawyers coordinated the recruitment of CPA Consultants, or “whitecoats” [159, pp. 6, 12], and handled invoicing for the Consultants’ research and remuneration.

Where does it lie, and why does it exist? The tobacco industry engaged lawyers as ‘corporate affairs consultants’ [160, p. 14] to enable and obfuscate industry involvement in their Consultancy Programs. This arrangement allowed CPA Consultants ‘to remain independent of the industry, though all know that it is tobacco money that is funding the exercise’ [161, p. 2]. The Industry viewed lawyers as:

The only option [… as] a group of people who have expertise in both the scientiﬁc arena and public affairs arena, and who can be trusted by the industry to manage the programme in accordance with their wishes [132, p. 6].

CPA Information transmissions by Consultants were coordinated by lawyers representing the industry, with lawyers reviewing the content and nature of information transmitted by Consultants. This process is illustrated in this correspondence to PM from Covington & Burling, a law firm:

“We received a very solid draft from Dr. Miguel last week, which [BAT scientist] Chris Proctor and we reviewed and approved with only minor suggestions for revision. We expect to receive the revised draft from Dr. Miguel […] today, which will allow us to perform a light English edit

[…] before it is submitted to Environmental Science and Technology [published by the American Chemical Society] [149, p. 1]

By ‘filtering’ the Consultants’ work, the lawyers would ‘eliminate areas of sensitivity’ for the industry [162, p. 3], thereby protecting their client. This extended to training Consultants as expert witnesses, by developing ‘their ability to testify persuasively in government hearings and to generate positive stories in the popular press’ [163, p. 8]. Industry lawyers ‘horse-shed’ CPA Consultants ‘to ensure that their opinions support the industry’s position on ETS and that their answers […] do not undercut the industry’ [164, p. 2].vii

The tobacco industry believed their lawyers could ‘serve as a buffer between the companies and the consulting scientists, providing both distance and some opportunities for work product protection’ [164, p. 2]. This “protection” was the “attorney work product doctrine” covering the lawyers’ Consultancy Program work. This principle upholds the conﬁdentiality of legal materials created by lawyers for their clients. To avoid the discovery of Industry-produced research through litigation, lawyers recommended that Consultancy Program activities be conducted only in countries that observed this doctrine [33, p. 201].

In 1998, however, the protective advantage of using lawyers in a Public Affairs capacity was undermined. A special master appointed by the Minnesota, USA, trial court concluded that the lawyers’ Consultancy Program work did not constitute ‘privileged’ information:viii

I specifically find that defendants have asserted claims of privilege over information generated by counsel acting in scientific, administrative or public relations capacities, but not in a legal capacity. That information is not privileged [166, Para. 281].

Years prior to this decision, there was disagreement as to the appropriateness of using lawyers to coordinate CPA Consultants:

[T]here is a dispute within PM between the scientists and the public relations people about who should spearhead the drive. Scientists think it should be scientists—PR [Public Relations] people think it should be lawyers. So far, lawyers are winning [167].

vii “Horse shedding” refers to the preparation of witnesses for cross-examination in court cases. To avoid misconduct, American lawyers are duty-bound ‘to extract the facts from the witness, not pour them into him; to learn what the witness does know, not to teach him what he ought to know’ ([165]). viii This finding contributed to the eventual release of internal industry documents analysed in this research project.

In the end, lawyers were the preferred intermediary. According to the Industry: ‘it would not be appropriate to hand it over to a scientist to manage as the project is actually being carried out for public affairs reasons!’ [132, p. 6].

4.4.7 Firms collaborate with their competitors to operate Consultant Programs in response to mutual Information Threats faced by the industry at large

D2-C7. Collaborate with competitors to fund and implement Consultancy Programs

Firms collaborate with their competitors to fund and implement Consultancy Programs. This view was expressed in 26 highlights spanning nearly half (n=11, or 46 per cent) of the 24 source articles analysed. These highlights were informed by 44 Internal Industry Records, a sample of which are shown below.

What this strategy is. Collusion between very competitive firms to fund and implement Consultancy Programs. These Consultancy Programs served to tackle a mutual threat: information substantiating health risks associated with their products. This was agreed in 1987 by the Tobacco Action Committee, an industry-wide research committee, which regularly discussed ‘major research issues facing the industry’:

[The] most important single issue facing the industry currently was that of ETS. The main question was how we should allocate our resources... This problem is being tackled by most, if not all, of the major companies and/or trade associations around the world, and it was felt that a degree of worldwide co-ordination was necessary to both complement ongoing work and develop data relevant to the UK [168, p. 1].

Where it lies, and why it exists. Given the globalised nature of the information threat, the Industry–led by PM–understood that a global response would be most effective. The competing firms were initially cautious and suspicious of partnering with their competitors, which drew criticism from PM – the proponent of the Consultancy Program [169, pp. 12-14]. Eventually the largest entities were working together to fund and implement a global Consultancy Program. This included: PM, R. J. Reynolds (RJR), BAT/Brown & Williamson (B&W) and Japan Tobacco Incorporated (JTI) [134; 170; 171; 172; 173; 174; 175]. As noted at the Special Meeting of the UK tobacco industry in 1988, this necessitated intra-industry partnerships and collaboration:

In every major international area (USA, Europe, Australia, Far East, South America, Central America and Spain) [PM] are proposing, in key countries, to set up a team of scientists organized by one national coordinating scientist and American lawyers, to review scientific literature or carry out work on ETS to keep the controversy alive. They are spending vast sums of money to do so . . . Because of the heavy financial burden, Philip Morris are inviting other companies to join them in these activities [162, p. 1].

Collaboration and cost-sharing in the CPA Expert Consultants Program enabled the tobacco industry to take on a greater scale and scope of CPA than they otherwise could achieve as individual firms. As conceded by BAT: ‘It would be impossible for us to carry out any individual part of the programme ourselves for such a small sum’ [176]. In Latin America, BAT and PM collaborated with C&B on the Consultancy Program for that region:

The consultants will be brought together for an initial training and orientation session in early September, and both BAT and PM supporting companies will have a meeting in Miami on October 21-25 with Covington & Burling to discuss implementation of the programme and activities that the consultants could undertake [177, p. 2].

PM contributed 40 per cent of its funding, and BAT contributed 60 per cent [178].

4.4.8 Firms recycle Consultant Programs to pre-empt or respond to the Information Threat gaining influence in other markets

D2-C8. Recycle Consultancy Programs in numerous jurisdictions

Firms scale up the impact of their Consultancy Programs by recycling their Consultants’ work outputs in numerous jurisdictions. This view was expressed in 38 highlights spanning two-fifths (n=10, or 38 per cent) of the 24 source articles analysed. These highlights were informed by 51 Internal Industry Records, a sample of which are shown below.

What the strategy is. Contractually, Consultants’ duties were the same across all regional programs [179]:

1) Write letters and editorials to newspapers 2) Write ETS/health related articles for press and scientific journals 3) Participate in scientific conferences either as a presentor [sic] or attendee 4) Conduct media interviews 5) Monitor smoking and health activities 6) Act as a troubleshooter to defuse a particular situation in which the tobacco industry should not be directly [180].

Citing several internal Industry documents, Muggli, Hurt and Blanke found these consistent practices enabled CPA Expert Consultants to be deployed in numerous jurisdictions:

The U.S. program began on an ad hoc basis in 1987 and later evolved into a large network of scientists who were used regularly inside and outside the United States (Whist, 1989) [181]. The European ETS Consultants Program was functioning by 1988 (Wells, 1988) [182]; the Asian program was developed in 1989 (Rupp & Billings, 1990) [86] and the Latin America program in 1991 (‘‘Regional public affairs plan and budget,’’ n.d.) [183]. [124, pp. 304-305].

Where it lies, and why it exists. Sharing Consultants across countries served to optimise their value to the industry, and to prevent ‘spill-over’ of tobacco controls from one jurisdiction to another. The 1992 ‘Overview of the Strategies and Goals of the European Consultant Program’ notes that:

The European [Consultant] program has long offered major support to the consultant programs in Asia and Latin America. European consultants are frequent participants in Asia and Latin America programs, and offer suitable opportunities for Asians and Latins to appear in Europe [123, p. 5].

Recycling the work of non-local Consultants depended on how receptive the local context is to outside expertise. In some cases, it was advantageous to espouse the prestige of a ‘global’ expert, or an expert from a more advanced economy [184; 185]. In 1990, C&B saw the International Society of the Built Environment – established by industry consultants –to be:

[A] major vehicle for reaching a variety of different audiences on IAQ issues. We are of course including Asian and American consultants in the society, so as to provide worldwide coverage of IAQ issues [157, p. 5].

The TI also sought to add foreign consulting scientists to its network. It was believed by at least one employee that this was a good strategy that would help counter what was described as the "extreme" anti-smoking movement in the US: This strategy is to bring a "foreign" perspective on ETS science to U.S. journalists through the use of the industry’s overseas consulting scientists. Through editorial board briefings and interviews with science and health reporters, these scientists will suggest that the U.S. understanding of science is skewed by anti-smoker media hype, and that the U.S. response to ETS science is extreme and out of step with the rest of the world [146, p. 2].

In other circumstances, it was more advantageous to leverage local experts who were loosely supported by the global network of Consultants [86]:

[O]ften it is necessary for scientists to respond rapidly to what may appear to be minor local issues e.g. misleading newspaper articles. This is something a local scientist can do quite naturally, but it looks suspicious if someone from another country does it. Of course, the tobacco industry can respond, but it will have less credibility and in some countries we may prefer to leave independent scientists to respond to protect us from a potential legal backlash [132].

4.5 D3 - Tactical activities performed by CPA Expert Consultants

Firms use CPA Expert Consultants to execute information-transmitting Tactics. These Tactics serve the Approach and Outcomes of a firm’s strategic response to an Information Threat (D3). Of the 24 source articles analysed, all but two (n=22, or 92 per cent) contained highlights which support this Dimension. The 22 supporting source articles contained 640 in-text highlights citing 407 industry records.

4.5.1 Firms use CPA Expert Consultants to actively address the information threat by producing and suppressing research on the product risks in question

D3-C1. Produce and suppress research on product risks

Firms use CPA Expert Consultants to produce and suppress research on product risks concerning the client Firm. This view was expressed in 200 highlights spanning over four-fifths (n=21, or 88 per cent) of the 24 source articles analysed. These highlights were informed by 175 Internal Industry Records, a sample of which are shown below.

What is the tactic? This tactic involves the production and selective publication of industry- funded research relating to health risks – and their ‘confounding factors’ – associated with their products,. As noted in a report on the Smoking and Health Research Activities of PM in Europe:

Science and Technology is staffed by 9 academics [...] Their mission is centered on [ETS] and commissioning researchers and potential authors of scientific papers to produce data publications, or statements that contradict or correct the scientific misinformation about ETS […] These projects are designed to provide data to support the industry’s responses to damaging studies in ETS [186, p. 2].

Where does it lie, and why does it exist? The tobacco industry felt cornered in terms of what they could concede in relation to product health risks:

Our position: ETS not shown to be a health hazard to non-smoker… People should focus on whole of indoor air if they are concerned… We cannot say ETS is ‘safe' and if we do, this is a "dangerous" statement" [141, p. 5].

The tobacco industry sponsored research by their Consultants that minimised the contribution of their product and practices to particular health problems:

The purpose of the attached pilot home air quality study will be to assess the degree of similar outcome in private dwellings, as a precursor to a possible significant study of home air quality. Results of such a study… could demonstrate that ETS has a relative insignificant effect on indoor air quality [186, p. 2].

In this vein, the tobacco industry sponsored their Consultants to explore the contribution of other factors that may confound the causal relationship between tobacco smoke and health risks. A confidential, note handwritten by a tobacco industry officer from 1988 expressed this point succinctly: ‘IAQ ?> ETS may be a problem, but if so one minor one in a sea of indoor pollution. Ventilation is answer’ [187].

The tobacco industry used CPA Expert Consultants for this tactic because they needed third parties ‘to provide data to support the industry’s responses to damaging studies in ETS’ [186, p. 4]. The Tobacco industry would prevent unfavourable research findings in their sponsored projects from reaching the public domain. For example, in 1990 PM blocked their German Consultant’s proposal to conduct a lifetime animal inhalation study of smoke inhalation:

[An] INBIFO study has shown that in 90-day inhalation test, no non reversible changes has [sic] been detected. In a lifetime study, the results were almost certain to be less favorable. Based on the analysis, the other members of the German industry agreed that the proposed study should not proceed [188, pp. 6-7].

4.5.2 Firms use CPA Expert Consultants to reactively address the information threat by monitoring, reviewing and criticising extant research into their product risks

D3-C2. Monitor, Review or Criticise extant research on product risks

Firms use CPA Expert Consultants to monitor, review or criticise extant research on product risks concerning the client Firm. This view was expressed in 82 highlights spanning nearly three-quarters (n=17, or 71 per cent) of the 24 source articles analysed. These highlights were informed by 54 Internal Industry Records, a sample of which are shown below.

What is the tactic? This tactic involves the Industry outsourcing to CPA Expert Consultants the monitoring of, and responses to the Information Threat. This included paying for Consultants to attend ‘regional meetings, informal training sessions and consultants fees for

© Copyright by Lisa Margaret Buffinton 2019 | All Rights Reserved 76 Lisa Margaret Buffinton (ANU UID: U4699563) reviewing pertinent literature’ [86, p. 22]. The objectives of this tactic – particularly the reviews and critiques - were twofold: to ‘demonstrate that the ETS studies taken as a whole do not support the conclusion that ETS exposure in any setting is associated with increased risk of disease…’ [189, p. 2]; and to ‘… explain ‘the real causes of indoor air pollution’ to the public and key decision makers [190, p. 2].

Where does it lie, and why does it exist? The tobacco industry paid CPA Expert Consultants to monitor new research and related policy developments. For example, CPA Expert Consultants would attend conferences and provide the Industry with reports on the conference, summarising the presentations of keynote speakers [180]. One fax from C&B lists 34 conferences (including meetings of the British Aerosol Society and the American Heart Association) between December 1988 and November 1990 that consultants were scheduled to attend [191]. According to a C&B memo, these monitoring activities were vetted by an industry selection panel:

We ask our consultants to cover all substantial scientific conferences where they can usefully influence scientific and public opinion. They also attend many other conferences on their own, as part of their ordinary scientific activities. The conferences we ask them to attend are selected after approval from [Philip Morris Europe scientist] Dr. Gaisch and with the advice of a small group of consultants, who serve as an informal scientific steering group [157, p. 3].

The tobacco industry Consultants also served to monitor policy developments within key policy-setting bodies. An example of this practice is detailed in a memo from C&B to PM and BAT that:

[Local industry ofﬁcials] asked us [C&B] to explore prior to the industry meeting in Miami what additional efforts might be made to obtain advance warning of initiatives planned by WHO [World Health Organization]/PAHO [Pan American Health Organization] for the Latin Region. We agreed to discuss this issue with [Industry Consultant] Dr. Alvarez, who may have contacts with PAHO representatives in Buenos Aires, and also to begin making discreet inquiries of PAHO Washington staff members with whom we have had contacts in the past [192, p. 3]

The tobacco industry also paid CPA Expert Consultants to review extant research into risks relating to the products and practices of the Industry. For example, in reviewing extant research on ETS and cardiovascular diseases, one Expert Consultant concluded that, in their view ‘[The] quality of many of these studies is suspect’ and ‘reviews on this subject fail to evaluate this issue in an objective manner’ [193]. As such, they saw the need to review and document ‘the weaknesses of the epidemiological data’ [193]. Another tobacco industry Consultant, Gaston Vettorazzi, was invited to conduct toxicologic reviews for the WHO Joint Meeting on Pesticides

Residues (JMPR) Secretariat [194; 195; 196]. His work writing and reviewing papers discussed by the Secretariat led to the WHO establishing a higher risk threshold for industrial pesticides used by the tobacco industry [197].

Consultants would ‘keep the controversy alive’ [162, p. 1] by criticising Information Threat proponents in various forums. One approach involved paying CPA Expert Consultants up to $10,000 to submit critical letters to editors of academic and general audience publications [198]. In another example, C&B organised conferences where Industry Consultants would claim ‘that the science of ETS has been manipulated by members of the worldwide antismoking community beyond any sensible recognition’ [190, p. 2]. Industry-funded institutes would also sponsor Consultants’ research, which challenged extant research; for example, ‘to refute the claim by Stanton Glantz and William Parmley’ (made in their 1991 article in Circulation [199])

‘that ETS is a cause of [cardiovascular disease] in nonsmokers’ [189, p. 2].

4.5.3 Firms use CPA Expert Consultants as CPA agents who disseminate the industry-preferred interpretation of their product risks and policy solutions

D3-C3. Disseminate industry interpretation of risks

Firms use CPA Expert Consultants to disseminate the client Firm- or Industry-preferred interpretation of product risks. This view was expressed in 270 highlights spanning three- quarters (n=18, or 75 per cent) of the 24 source articles analysed. These highlights were informed by 97 Internal Industry Records, a sample of which are shown below.

What is the tactic? This tactic involves using Consultants to communicate the Industry- preferred interpretation of the risks related to their products and practices. The aim is to have:

[A] core group of scientists who are fully trained on the relevant issues and have developed sufficient enthusiasm to be prepared to make a real contribution—by way of writing articles, participating on our behalf at scientific meetings, joining industry people at briefings of government officials [200, p. 1].

According to Kenneth Warner, this tactic involves using consultants’ communications to: define the risk ‘lexicon for social discourse’ by emphasising ‘debate’ and ‘controversy’ surrounding the Information Threat; and to ‘[distort] the findings of scientific studies linking smoking to disease’ [75, p. 839].

Where does it lie, and why does it exist? The analysis found that the tobacco industry used their consultants to communicate the Industry-preferred interpretation of risk through five different channels: Directly to policy makers (31 references spanning 14 source articles); In legal and regulatory proceedings (13 references spanning 8 source articles); In scholarly publications and conferences (78 references spanning 17 source articles); In the lay press or media (60 references spanning 14 source articles); and Through industry publications (53 references spanning 14 source articles).

The Philip Morris 1988 action plan for 1989-1992 summarises the expected communication roles of their CPA Expert Consultants:

[Consultants] should be appropriately encouraged to prepare papers, participate in scientific societies with relevant areas of interest, and take active roles in scientific conferences. Where possible, without compromising a scientist’s effectiveness, they should be encouraged to provide statements or testimony for use before government commissions and information to the media’ [134, p. 5]

The tactical value of using Consultants to disseminate the Industry-preferred product risk position was described by an official from an Argentinian BAT subsidiary after their meeting with the President of the 8th World Conference on Tobacco or Health (WCToH), Jorge Alberto Pilheu:

"This [conference agenda for the 8th WCToH] provides a unique opportunity that has not existed in previous conferences which is to present top level scientists whose conclusions differ from those generally reached by participants of these meetings… Furthermore, they would have the chance of making speeches at the National Academy of Medicine and at the Medical Association of Argentina. The industry, obviously, can not [sic] appear to sponsor the activity nor finance participant’s trips. That would have to be done through donations to foundations or independent institutions [201, p. 1].

This practice served the interests of the tobacco industry in resisting and disrupting the Information Threat. As noted in a Roper Organization report for the Tobacco Institute in 1978:

The strategic and long-run antidote to the passive smoking issue is, as we see it, developing and widely publicizing clear-cut, credible, medical evidence that passive smoking is not harmful to the non-smoker’s health [137, p. 7].

4.5.4 Firms use CPA Expert Consultants to facilitate industry relationships with key decision makers

D3-C4. Facilitate industry relationships with decision-makers

Firms use CPA Expert Consultants to facilitate relationships with decision-makers (on behalf of the client Firm or Industry) regarding regulation of their product and practice risks. This view was expressed in 77 highlights spanning half (n=12, or 50 per cent) of the 24 source articles analysed. These highlights were informed by 77 Internal Industry Records, a sample of which are shown below.

What is the tactic? This tactic involves the firm leveraging Consultants and their networks to attain closer access and influence over key decision makers. For example, one consultant was recruited by C&B for the tobacco industry Consultant Program because, among other things, they were “a technical and scientiﬁc advisor to Carlos Menen, the President of Argentina” [202, p. 1].

Where does it lie, and why does it exist? tobacco industry CPA Expert Consultants were used to enhance Industry access to, and influence within academic bodies, non-government organisations (NGOs) and Government organisations, the popular media, policy makers and public officials. For example, C&B reported that their European Consultants were members of the following networks:

One consultant is, for example, the advisor to a particularly relevant committee of the [UK] House of Commons. One is the executive director of a leading scientiﬁc society that considers workplace and related issues. Several are advisors to the European Community on scientiﬁc matters. Several have been members of the working groups of the International Agency for Research in Cancer. One consultant is a medical advisor to several Middle Eastern governments. Another has numerous other governmental contacts throughout the world, including those who persuaded the Portuguese Minister of the Environment to open the Lisbon conference. Still another is [a] medical consultant to several British companies. Others hold major professorships in leading universities and technical schools [157, p. 8].

The tobacco industry would use their CPA Expert Consultants who had the access, influence and inclination to serve as undeclared lobbyists. As reflected in the Argentina example introduced before, C&B reported to PM that their Expert Consultant, Carlos Alvarez (a professor at the University of Buenos Aires Medical School [202]) was willing to facilitate personal relationships with decision-makers on behalf of the tobacco industry in Argentina:

[Prepared] to host a series of dinners at his home, as well as other meetings as appropriate, with key government ofﬁcials and important members of the Argentine press. The immediate occasion for such gatherings might be a series of visits to Argentina by (a) a current or former member of the United States Congress, (b) a consulting scientist for the United States, and/or (c) some other individual qualiﬁed to talk about the inappropriateness of smoking restrictions in view of other problems and challenges confronting Argentine policymakers. Alvarez would

be responsible for issuing invitations to the gatherings. He would also act as the host, providing a few words of introduction for the United States guest and, following the guest’s presentation, summarizing some of the main arguments against smoking restrictions [203, pp. 2-3].

Emphasis was placed on avoiding the lobbying targets (Alvarez’s guests) from becoming aware that they were subject to lobbying efforts by the Consultant:

Throughout, every effort would be made to preserve the informality of the gatherings. If the guest on a particular occasion is a current or former member of the United States Congress, smoking restrictions might be only one of several topics addressed, with the political and/or economic situation in the United States perhaps taking top billing [203, p. 3].

Their relationship-based lobbying would contribute to the failed implementation of regulatory actions that would otherwise restrict the marketing of Tobacco. This is evident in the Argentina example, when C&B reported to PM that:

[Expert Consultant] Dr. Carlos Alvarez played a very useful role in the larger industry efforts to defeat, and then convince President Menem to veto, the antitobacco [sic] legislation approved by the Argentine Parliament at the end of 1992. Dr. Alvarez’s activities included conversations with Senators from both parties and a series of conversations with President Menem as well as President Menem’s brother, who serves as President of the Argentine Senate. Dr. Alvarez also provided President Menem with a brieﬁng package and covering letter that pointed out that the smoking restrictions that had been proposed lacked a solid scientiﬁc basis [203, pp. 1-2].

4.5.5 Firms use CPA Consultants to troubleshoot PR issues in relation to the Information Threat

D3-C5. Troubleshoot PR issues facing the sponsor industry

Firms use CPA Consultants to troubleshoot PR issues in relation to the Information Threat. This view was expressed in 11 References spanning over a quarter (n=6, or 27 per cent) of the 24 source articles analysed. These highlights were informed by 9 Internal Industry Records, a sample of which are shown below.

What is the tactic? This tactic involves retaining a network of CPA Expert Consultants available to assist the public relations needs of the firm. CPA Expert Consultants serve to ‘‘produce research or stimulate controversy in such a way that public affairs people in the relevant countries [… are] able to make use of, or market; the information’’ [162, p. 4].

Where does it lie, and why does it exist? Points 1, 2, 4, and 7 of the European Consultant Program’s aims outline how the tobacco industry used their Consultants to execute this tactic:

(1) Provide a cadre of scientists who can assist the industry in handling governmental and regulatory issues (2) to educate government officials and regulators regarding Indoor Air Quality (IAQ) and related issues… (4) to educate the media regarding both IAQ and ETS issues, and to stimulate favorable or at least corrective press coverage wherever we can… [and] (7) to support other Corporate Affairs objectives as needed [123, p. 7].

The PR value of the Consultants’ activities was central to the tobacco industry’s reasons for using CPA Expert Consultants as CPA agents:

1. To secure scientists who could act as potential experts for Industry, 2. To secure goodwill support on critical issues, 3. To push scientific extremists into isolation, 4. To have work published which is suited to reestablish a balanced view in the scientific community, i.e., defuse critical issues. [129]

4.6 D4 - Qualities of CPA Expert Consultants

Firms use CPA Expert Consultants for their special qualities that make them effective CPA agents who can support the firms’ response to the Information Threat (D4). Of the 24 source articles analysed, all but two (n=22, or 92 per cent) contained highlights which support this Dimension. The 22 supporting source articles contained 538 in-text highlights citing 609 industry records.

4.6.1 Firms recruit Consultants who are willing to be paid by the firm for CPA services rendered

D4-C1. Paid by the industry for services

Firms recruit CPA Expert Consultants who were willing to be paid by the Firm or Industry to counter the information-based threats to the client Firm. This view was expressed in 109 References spanning over four-fifths (n=20, or 83 per cent) of the 24 source articles analysed. These References were informed by 147 Internal Industry Records, a sample of which are shown below.

What is the tactic? This tactic involves the firm recruiting individuals who are willing to be paid to be an expert consultant on the firm’s topics of interest. In the case of the tobacco industry, it spent ‘vast sums of money’ to ‘coordinate and pay… scientists on an international basis to keep the [environmental tobacco smoke controversy alive]’ [162, pp. 1, 6.].

Where does it lie, and why does it exist? The tobacco industry paid CPA Expert Consultants to perform various tactical activities. The Industry paid up to $1.3 million for tobacco smoke

© Copyright by Lisa Margaret Buffinton 2019 | All Rights Reserved 82 Lisa Margaret Buffinton (ANU UID: U4699563) exposure studies performed by Consultants at Oak Ridge National Laboratory and Johns Hopkins University [204; 205]. The Friedman Institute received over $7 million in funding from PM over eight years to help get ‘the cancer monkey off the cigarette industry’s back’ by researching confounding factors in cancers associated with tobacco smoke [206, p. 1]. Some internal industry documents reveal that Consultants were paid up to $10,000 for writing letters to the editors of journals and newspapers [198].

Given the scale of these expenses, the Industry co-funded their programs to share the significant cost burden. As noted by Muggli, Hurt and Blanke:

Philip Morris solely supported the European program, whereas ﬁnancial responsibility for the Asian and Latin America programs was initially shared among Philip Morris, British American Tobacco, Japan Tobacco, Inc., R. J. Reynolds, Brown & Williamson, and Rothmans [130, p. 305]

Consultants would be paid through various intermediaries to protect the Industry’s image, but also to preserve the reputations of the Consultants themselves. One example is the recruitment of a Hong Kong-based occupational health expert, Dr Sarah Liao, to the Tobacco industry’s consultancy program. Dr Liao was critical of ‘the health lobby for its inquisitorial tactics and scientific bias’, but had reservations about working for the Industry [207, p. 6]. She agreed to join the Consultancy program on the condition that another Consultant, Dr Linda Koo of the Department of Community Medicine, University of Hong Kong, would:

‘act as an intermediary and buffer between Koo and our group [of Consultants]. Koo would invoice Liao for any work she does on our behalf, and Liao would in turn be paid by us [C&B] [208].

Some internal industry documents suggest that the Industry’s funding relationships with Consultants were so successfully obscured that some Consultants were unaware of the

Industry’s involvement [209]. However, others claim that the majority of Consultants were aware of who was funding their work:

It was suggested that the position of Covington and Burling [as an intermediary] allows the member of each group [of Consultants] to remain independent of the industry, though all know that it is tobacco money that is funding the exercise [161, p. 2].

4.6.2 Firms recruit Consultants who can be convincingly presented as a third party, independent scientist or academic

D4-C2. Presentable as an independent, third-party scientist or academic

Firms recruit CPA Expert Consultants who can be presented as independent, third party scientists or academic researchers. This view was expressed in 194 References spanning all but two (n=22, or 92 per cent) of the 24 source articles analysed. These References were informed by 204 Internal Industry Records, a sample of which are shown below.

What is the tactic? This tactic involves the firm seeing out and recruiting individuals who can present themselves as relevant scientific or technical experts who have ‘no previous connection with tobacco companies’ [162, p. 3].

Where does it lie, and why does it exist? The Tobacco industry recruited individuals who appeared to the public to be neutral and independent, and experts on the subject matter at hand. The tobacco industry also sought out individuals who met these criteria and who were sympathetic to the industry’s preferred view on risk, and who were willing to be trained by the industry on how to perform as Consultants.

To support their Consultants’ reputations, the Industry sought to ‘push the notion that these people are of such stature that they cannot be corrupted by receiving a few thousand dollars from the tobacco industry…’ [210]. To this end, the Industry controlled the channels of external contact and volume of Consultants’ activities to avoid suspicion:

Dr. Alvarez will be told that journalists will be invited by industry representatives to contact him directly and that, in the event that no such direct contact take place, he is expected to write letters to the editors of reporting newspapers and magazines. A maximum of four letters per year would be expected from Dr. Alvarez in order to prevent his overexposure [211, p. 6].

Consultants were complicit in maintaining their image. This was expressed by one consultant, Ragnar Rylander, in a letter to PM:

I have never been involved with any Philip Morris executive in meetings or contacts with outside persons, to retain as far as possible the image as an independent scientist. So far this has worked well… [212].

The industry sought expertise from ‘consultants [who] represent a wide variety of scientiﬁc disciplines, including chemistry and biochemistry, epidemiology, oncology and pulmonary and cardiovascular medicine’ [211, p. 1]. Each Consultant was valuable for their public credibility as Consulting scientists. One example of this was the Industry’s reaction to one of their Hong Kong-based Consultants being awarded a contract to conduct an air quality study for the Hong

Kong Government. C&B advised the Industry that this was ‘a very substantial achievement ... precisely the sort of result the ETS Consultants Program is designed to achieve’ [151, p. 2].

External validation of the Consultant’s independence and expertise was crucial for recruitment; as was certainty of the Consultant’s alignment with the Industry’s view on their products’ risks. Potential Consultants would be screened by C&B through a ‘rather oblique’ [162, p. 5] recruitment process whereby candidates were incrementally informed of the Industry-based nature of the role they were being recruited for [86; 148; 157; 213; 214; 215; 216; 217]. This process is described by Muggli, Hurt and Blanke (citing Sharon Boyse of Philip Morris [162]) in their interpretation of these internal Tobacco industry documents:

Potential consultants were identiﬁed and screened for ‘‘antismoker’’ opinions before any contact was made. Those who passed this test were approached by intermediaries about their interest in ‘‘indoor air quality’’ and asked to critique 10 hr of reading from scientiﬁc literature, including ‘‘anti-ETS’’ articles. Only those who provided the right responses at this point were informed of tobacco companies’ involvement [124].

The Tobacco industry stressed the imperative to recruit individuals who were willing to be trained by industry to operate as Consultants in the industry’s preferred manner [159]. As noted in the PM memo below, recruitment of Consultants with these special qualities was necessary to enable the Industry’s strategic disruption of the Information Threat:

With proper press handling [at the 8th WCToH] we could, for the first time, create a controversy in areas in which public opinion is under the impression that none exists. This, of course, requires that we are able to achieve the participation of top level scientists or academics, doctors, biostaticians, with sound reputations in the USA or the UK [201, p. 1]. 38 [21]

4.6.3 Firms recruit Consultants whose credibility was bolstered by their affiliations with reputable organisations and institutes

D4-C3. Affiliated with reputable organisations and institutes

Firms recruit CPA Expert Consultants who are affiliated with reputable organisations and institutes. This view was expressed in 137 References spanning three-quarters (n=18, or 75 per cent) of the 24 source articles analysed. These References were informed by 154 Internal Industry Records, a sample of which are shown below.

What is this tactic? This tactic involves seeking out individuals whose credibility is bolstered by their position an networks. According to a 1988 memo written by the Industry-funded

Tobacco Institute, the credentials of their Consultants were highly valued: ‘The academics are all faculty members of prestigious universities and medical schools’ [146]. The Industry considered there to be three categories of CPA Expert Consultants: university staff (e.g. professor, reader); (ii) professional consultants – including university professors’ consultancy firms [170]); and (iii) chartered research institute members (e.g. Netherlands Organization for Applied Scientific Research) [218].

Where does it lie, and why does it exist? The Tobacco industry recruited individuals who were affiliated with independent, reputable entities; policy makers; and industry-funded organisations.

A sample of entities affiliated with the tobacco industry’s Consultants (within the 22 Sources analysed for this taxonomy) include: Oak Ridge National Laboratory and Johns Hopkins University, USA [204; 205]; PAHO [78]; WHO [219]; and CIESPAL (Céntro de Estudios Superiores en Comunicación para América Latina) - a media peak body [78]; McGill University, Canada [78]; University of Chile, Chile [78]; National University of Costa Rica, Costa Rica [78]; Ministry of Public Health, Guatemala [78]; Argentine National Academy of Sciences and National Academy of Medicine, Argentina [78]; Helsinki School of Economics, Finland [81]; Hannover Medical School, University of Dusseldorf and Fraunhofer Institute, Germany [220].

The tobacco industry’s Consultants were also affiliated with key policy makers, including national governments [80] and the Thai royal family [221]. To the Industry, the ideal Consultant was ‘Preferably a former minister, a Dean of a medical school or member of the National Academy of Science’ [222, p. 2].

Consultants would also be affiliated with Industry-funded organisations, partly as a channel for disseminating their work, and partly to facilitate their indirect industry funding. As noted in this memo from C&B to PM, the Centre for Indoor Air Research (CIAR) was one such Industry-funded organisation:

We [C&B] all know that many scientists will not accept funding directly from the industry but will accept funding from entities like CIAR. We need to have access to the best qualified researchers at the most prominent institutions worldwide when deciding who should conduct research for which funds have been made available. CIAR should provide us with that access, now and into the future [223, p. 4]

As made apparent in this memo written by the Industry-funded Tobacco Institute, the credentials of Industry Consultants were highly valued in serving the Consultants’ higher purpose:

‘The academics are all faculty members of prestigious universities and medical schools. Their mission is to influence the scientific community’s view of ETS science [146, p. 1].

4.6.4 Firms sought out individuals capable of acting in two capacities: as researchers, and as PR or Government Relations professionals

D4-C4. Serve as both researchers and as PR or Gov't relations professionals

Firms recruit CPA Expert Consultants who can serve as both academic researchers and as Public or Government Relations professionals. This view was expressed in 56 References spanning half (n=12, or 50 per cent) of the 24 source articles analysed. These References were informed by 51 Internal Industry Records, a sample of which are shown below.

What is the tactic? This tactic involves recruiting individuals who could be presented as an expert, and communicate with various audiences on the product and practice risks in question. To the tobacco industry, the ideal Consultant was:

… Willing and capable of conveying an unbiased view of ETS to target audiences. Highly reputable. Good public speaking skills. … Knowledge of Latin America health priorities and environmental [sic] issues affecting Latin America. Familiar with the politics of public health. … Preferably English speaking or at least enough knowledge of the English language to read and understand the scientific literature” [222, p. 2].

The Industry would recruit Consultants to conduct research into an aspect of the issues concerning their products’ safety. They were then expected to use their research findings to ‘Respond promptly to media articles misrepresenting the science of ETS or calling for smoking restrictions for scientifically unjustified reasons’ [211, p. 6].

Where does it lie, and why does it exist? The tobacco industry recruited consultants as researchers and PR professionals. Recruitment of individuals with such skills was challenging because it also depended on their sympathies for the Industry’s position, and their appearance of independence. This challenge is suggested in the following comment made by an industry

© Copyright by Lisa Margaret Buffinton 2019 | All Rights Reserved 87 Lisa Margaret Buffinton (ANU UID: U4699563) representative about a Venezuelan candidate for the Philip Morris Latin American Consultancy Program:

It may be, however, that [the candidate] has already been identified as a friend of the tobacco industry. He knows many of the people at the local companies, and the automobile races at which he announces are sponsored by the [tobacco] companies [202].

The tobacco industry heavily invested in fostering Consultants’ dual capabilities to ‘Develop [Consultants’] ability to testify persuasively in government hearings and to generate positive stories in the popular press’ [163, p. 8]. This was considered necessary to use the Consultants’ communication skills to ‘control the focus of the debate’ [224, p. 351] and to avoid the "danger that in discussion the issue [ETS] might be broadened" beyond the Industry’s preferred position [224, p. 351; 225, p. 1]. Training provided to the CPA Expert Consultants by the tobacco industry was covert in nature:

We [C&B] certainly do not want [a Consultant] to say, in response to an inquiry from a member of the press or colleague, that a major part of his expertise stem from ETS training/orientation sessions that he has attended that have been put together by a couple of tobacco companies. What is needed is some independent source of expertise, complementing his general medical training, that he can rely upon if challenged [226, p. 1].

Developing such skills–and creating opportunities to leverage them–was advantageous to the Industry because they promote consultants’ ‘standing in the international scientiﬁc community but provide bases for local and regional media initiatives as well’ [227, p. 3].

The industry sought out Consultants with additional desirable traits (e.g. media skills, physical appearance, and an ability to speak English) because these traits enhanced their public presentation, as suggested in the quotes below:

Many consultants are already skilled in media techniques, including one scientist in Venezuela who is a motor racing commentator in his spare time! ... [177, p. 2].

Dr. Bruno Burger is a Harvard-educated cardiologist who speaks excellent English. He teaches and conducts research at a prestigious teaching hospital in Caracas. Dr. Burger is also handsome and articulate. In many ways he seems the perfect candidate [202, p. 11].

4.6.5 Firms retained Consultants whose work outputs tend to favour the industry’s policy positions

D4-C5. Work outputs favour industry policy position

Firms recruit CPA Expert Consultants whose work outputs tended to favour the Industry- preferred policy position. This view was expressed in 42 References spanning nearly two-thirds (n=15, or 63 per cent) of the 24 source articles analysed. These References were informed by 53 Internal Industry Records, a sample of which are shown below.

What is the tactic? This tactic involves the recruitment of consultants whose sympathies allow their research to favour the industry position.

An attack on the credibility of evidence may well provide the rational argument to soften their [smokers' and non-smokers'] attitudes [...] The challenge will be to find a sympathetic doctor who can be demonstrated to take a largely independent stance [224, p. 351].

Where does it lie, and why does it exist? Consultants’ work outputs tended to favour the Industry’s position because they were trained by the Industry to be more sympathetic; their work would emphasise individual choices in relation to regulation of risks; they would leverage industry-funded research; they would interpret their research findings generously; and the industry would suppress contrary views.

The Tobacco industry trained Consultants to be more sympathetic to the Industry’s perspective. As described by C&B, the trainee Consultants would be mentored with ‘care and feeding’ by experienced Industry Consultants:

[The trainees] will meet [mentor] consultants in each market... Perry and Leslie [U.K. mentor consultants Roger Perry and George Leslie] will, therefore, do the care and feeding, but also some practical training (showing the [trainee] consultants how to deal with government ofﬁcials), make some points (hopefully) that the [trainee] consultants are unable or unwilling to make, as well as gather some intelligence directly from the government sources [228, p. 2].

The Industry encouraged their Consultants’ to emphasise individual choices in relation to the regulation of risks. For example, for the 8th WCToH, the Industry encouraged their Consultants to submit papers that discussed the infringement of 'individual freedoms' by tobacco controls:

Here the possibility is to have someone of importance send a report directly questioning the antismoking fight for considering it as an attack to individual liberty; for considering that these groups are prohibitionist, paternalist, retrograde and leading the report should extol the individual’s freedom to do or refrain to do something according to his conscience, i.e., develop an eminently liberal thought and should repudiate the groups that seek to decide what the rest of people may or may not do. It is assumed this report will be immediately rejected, and this will provide even more reasons to prove how partial and prejudiced these groups are. If materialized, such rejection will have to be spread and made publicly known [229, p. 25].

The Industry also direct their Consultants to focus on leveraging extant industry-funded research and literature, which had findings favourable to the Industry:

[C&B] can provide a much higher level of public consultant activity than occurred last year. Having now achieved a reasonable command of the relevant [industry-sanctioned] literature, and with a substantial level of enthusiasm for the project, our consultants are prepared to do the kinds of things they were recruited to do… [86, p. 19].

Consultants who expressed views that were inconsistent with the Industry’s position were silenced. This is reflected in the content of Consultants’ contracts:

You [the consultant] agree to make yourself available as a consultant to RJR at the request of the Research and Development Department. . . During the term of this agreement, you shall refrain from any action or conduct which is inimical or opposed to the interest of RJR. . . Any information developed by, or disclosed to, you in connection with services performed hereunder whether oral, written or observed while on RJR premises shall be regarded as strictly confidential… Services performed hereunder shall be performed entirely at your risk [230, pp. 4-5].

This was also reflected in PM’s statement to the CEO of a Finnish subsidiary, Amer-Tupakka, regarding a local production manager’s concession in a local newspaper that quitting smoking was the only way to avoid the health risks of smoking:

We [PM] do not understand that a representative of AmerTupakka is not aware of the fact that there is no medical evidence showing a causal relationship between smoking and health hazards. We believe it would be advisable to instruct all personnel within Amer-Tupakka that no-one else than you give statements on tobacco issues potentially touching the smoking and health issues.… For obvious reasons we feel it is important that everyone is aware of how careful we need to be in everything we say [87, pp. 1-2].

In some instances, Consultants who expressed views that were inconsistent with the Industry’s position were bought out by the Industry. Some Consultants were unwilling to change their contrary position because ‘departing from the principles in the existing literature (dominated by anti-smoking views) calls for some boldness’ [231, p. 2]. To overcome this, the Industry offered financial incentives (i.e. an extra bonus) for Consultants to revise their calculations and research findings [231; 232].

4.7 Concluding comments: Taxonomy results

The Taxonomy Development results suggests that tobacco firms – supported by their lawyers, competitors and complementary industries – used expert consultants as specialised Informational CPA agents. The taxonomy developed in chapter 4 is mapped in a proposed

© Copyright by Lisa Margaret Buffinton 2019 | All Rights Reserved 90 Lisa Margaret Buffinton (ANU UID: U4699563) model (see Figure 8) of how firms use expert consultants as Informational CPA agents. The model integrates the findings of Chapter 4 of this dissertation and findings from extant literature on CPA in population health policy-making. These consultants were tasked with countering “information threats” describing health risks associated with tobacco products and the promotion of smoking. There are five conclusions that can be drawn from the results described in chapter 4.

Figure 8: Taxonomy results map

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First, firms use expert consultants as CPA agents when there is an “information threat” that may pose an existential threat to the firm. The tobacco industry associated the “information threat” (D1-C1) with unfavourable changes in market regulation (D1-C4) leading to weakened market performance (D1-C5). To a lesser extent, the information threat (D1-C1) was also associated with legal risks (D1-C2) and brand and alliance risks (D1-C3) leading to weakened market performance (D1-C5).

Second, there are 23 characteristics of how expert consultants are used by firms as CPA agents. These can be grouped among four thematic dimensions. Each characteristic is supported by between six and 22 of the 24 source articles. This taxonomy extends on the work of Bero and Jernigan and others, by identifying 15 new, distinct characteristics of this practice. These new, distinct characteristics include:

• D1-C1. Growing academic research base on product risks • D1-C2. Growing threat of litigation in light of C1 • D1-C3. Depreciating public image and regulatory alliances in light of C1 and C2 • D1-C4. Building regulatory pressure in light of C1-C3 • D1-C5. Market performance under threat from C1-C4 • D2-C1. Resist and delay product restrictions in given jurisdiction • D2-C2. Neutralise influence of policy adversaries • D2-C3. Enhance credibility of sponsor industry • D2-C4. Generate uncertainty in product risk discourse • D2-C6. Use lawyers to coordinate Consultancy Programmes • D2-C7. Collaborate with competitors to fund and implement Consultancy Programmes • D2-C8. Recycle Consultancy Programmes in numerous jurisdictions • D4-C2. 3rd party independent scientist or academic • D4-C3. Affiliated with reputable organisations and institutes • D4-C4. Serve as both researchers and as PR or Gov't relations professionals

These 15 original contributions are reflected in Table 7. They capture the drivers for using expert consultants as CPA agents, the strategic purpose and approach to this practice, and attributes of expert consultants. The tactics that expert consultants were employed to perform are discussed in extant literature.

Table 7: Alignment of initial set of attributes with the final taxonomy

;

icies

;

funded organizations and researchers researchers and organizations funded

–

;

irectly to policy makers policy to irectly

;

itutions

;

New

ith incomplete, distorted views of the science underlying alcohol policies alcohol underlying ofscience the views distorted incomplete, ith

r interpretation of risk directly to policy maker policy to directly risk of interpretation r

interest group position group interest

Publish research that supports the interest group position group interest the supports that research Publish

Fund research that supports the the supports that research Fund

Fund research that supports the interest group positio group interest the supports that research Fund

Pressuring national and international governmental inst governmental international and national Pressuring

Pressuring national and international governmental institutions governmental international and national Pressuring

Disseminate interest group data o data group interest Disseminate

Producing scholarly publications with incomplete, distorted views of the science underlying alcohol policies alcohol underlying ofscience the views distorted incomplete, with publications scholarly Producing

Disseminate interest group data or interpretation of risk d risk of interpretation or data group interest Disseminate

Disseminate interest group data or interpretation of risk in the lay press lay the in risk of interpretation or data group interest Disseminate

Publish research that supports the interest group position group interest the supports that research Publish

Criticise research that does not support the interest group position group interest the support not thatdoes research Criticise

Producing scholarly publications w publications scholarly Producing

Suppress research that does not support the interest group position group interest the support not thatdoes research Suppress

Publish research that supports the interest group position group interest the supports that research Publish

Fund research that supports the interest group position group interest the supports that research Fund

Producing scholarly publications with incomplete, distorted views of the science underlying alcohol pol alcohol underlying ofscience the views distorted incomplete, with publications scholarly Producing

9. Encouraging collaboration of public health researchers with industry with researchers health public of collaboration Encouraging 9.

Presence of initial set of characteristics of set initial of Presence

)

makers

); CHARACTERISTIC (D CHARACTERISTIC );

research base on product risks product on base research

stry interpretation of risks of interpretation stry

putable organisations and institutes and organisations putable

mance under threat from C1 from threat under mance

C5. Work outputs favour industry policy position policy industry favour outputs Work C5.

C4. Serve as both researchers and as PR or Gov't relations professionals relations Gov't PRor as and researchers both as Serve C4.

C3. Affiliated with re with Affiliated C3.

C2. 3rd party independent scientist or academic or scientist independent party 3rd C2.

C1. Paid by the industry for services for industry the by Paid C1.

C5. Troubleshoot PR issues facing the sponsor industry sponsor the facing PRissues Troubleshoot C5.

C4. Facilitate industry relationships with decision with relationships industry Facilitate C4.

C3. Disseminate indu Disseminate C3.

C2. Monitor, Review or Criticise extant research on product risks product on research extant Criticise or Review Monitor, C2.

C1. Produce and suppress research on product risks product on research suppress and Produce C1.

C8. Recycle Consultancy Programmes in numerous jurisdictions numerous in Programmes Consultancy Recycle C8.

C7. Collaborate with competitors to fund and implement Consultancy Consultancy implement and fund to competitors with Collaborate C7.

C6. Use lawyers to coordinate Consultancy Programmes Consultancy coordinate to lawyers Use C6.

C5. Subvert scientific process scientific Subvert C5.

C4. Generate uncertainty in product risk discourse risk product in uncertainty Generate C4.

C3. Enhance credibility of sponsor industry sponsor of credibility Enhance C3.

C2. Neutralise influence of policy adversaries policy of influence Neutralise C2.

C1. Resist and delay product restrictions in given jurisdiction given in restrictions product delay and Resist C1.

C5. Market perfor Market C5.

C4. Building regulatory pressure in light of C1 of light in pressure regulatory Building C4.

C3. Depreciating public image and regulatory alliances in light of C1 and C2 and C1 lightof in alliances regulatory and image public Depreciating C3.

C2. Growing threat of litigation in light of C1 of light in litigation of threat Growing C2.

C1. Growing academic academic Growing C1.

grammes

D4. Qualities of Industry CPA Consultants CPA Industry of Qualities D4.

D3. Tactical activities of Industry CPA Consultants CPA Industry of activities Tactical D3.

Pro

D2. Strategic approaches to using CPA Consultants CPA using to approaches Strategic D2.

D1 D1. Industry rationales for using CPA Consultants CPA forusing rationales Industry D1. TAXONOMY DIMENSION (D DIMENSION TAXONOMY

Third, expert consultants are used as CPA agents to transmit information in a manner that achieves special perlocutionary speech effects in the policy arena. These effects are captured in four characteristics within this taxonomy: delaying or resisting unfavourable (to the firm) policy changes (D2-C1), Neutralising adversaries (D1-C2), enhancing the credibility of the firm in policy discourse (D2-C3), and generating doubt around unfavourable (to the firm) evidence of product or business practice risks (D2-C4).

Fourth, there are four strategic approaches to optimising the effectiveness of perlocutionary speech acts performed by expert consultants as industrial CPA agents. These are captured within the taxonomy and include: subverting scientific processes (D2-C5), using lawyers as intermediaries between consultants and the firm (D2-C6), Collaborating with market competitors in coordinating and funding expert consultants (D2-C7), and recycling expert consultants in different jurisdictions (D2-C8).

Fifth, there are five attributes sought after in expert consultants who act as industrial CPA agents. These attributes are captured in the taxonomy, and include the qualities of: willingness to be paid by the industry for their services (D4-C1), being presentable as independent, third party subject matter expert (D4-C2), having affiliations with reputable institutions (D4-C3), producing work outputs that favour the preferred position of their sponsor industry (D4-C4), and having the capability to serve dual roles as academically-grounded subject matter experts and as public relations and government relations professionals.

As the scope of this thesis is focused producing research that serves both a “contextual” and “diagnostic” purpose, it was beyond the scope of this research project to identify strategies that may affect the phenomena under study, such as grooming strategies of the industry [92, p. 307].

4.8 Chapter 4 (Taxonomy Develoment) references

1. Ong, E. K., & Glantz, S. A. (2001). Constructing "sound science" and "good epidemiology": Tobacco, lawyers, and public relations firms. American Journal of Public Health, 91, pp. 1749- 1757. doi:10.2105/AJPH.91.11.1749 33. Bero, L. A. (2005). Tobacco industry manipulation of research. Public Health Reports, 120(2), pp. 200-208. 65. Unknown. (1969). Smoking and Health Proposal (meeting materials; presentation). Brown & Williamson Records; Minnesota Documents. Archive: Truth Tobacco Industry Documents

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172. Unknown. (1994). ETS Consultants Program (Memo). Philip Morris Records. Date Published: 07/06/1994. Archive: Truth Tobacco Industry Documents Library, University of California, San Francisco. Bates Number: 2029043205. Available from: https://www.industrydocumentslibrary.ucsf.edu/tobacco/docs/qhkd0127. Date accessed: 22/05/2018. 173. Unknown. (1994). Preliminary 1994 Consultants Program Proposal 1994 (Budget; Proposal). Philip Morris Records. Date Published: Date unknown (1994). Archive: Truth Tobacco Industry Documents Library, University of California, San Francisco. Bates Number: 2023590685- 2023590687. Available from: https://www.industrydocumentslibrary.ucsf.edu/tobacco/docs/fpwx0111. Date accessed: 22/05/2018. 174. Unknown. (1988). ETS Strategy in the Philip Morris EEC Region (Report). Philip Morris Records. Date Published: 09/08/1988. Archive: Truth Tobacco Industry Documents Library, University of California, San Francisco. Bates Number : 2028364722-2028364728. Available from: https://www.industrydocumentslibrary.ucsf.edu/tobacco/docs/mqwv0120. Date accessed: 22/05/2018. 175. Ware, K. (1988). European ETS Plan (Report). Philip Morris Records. Date Published: 18/04/1988. Archive: Truth Tobacco Industry Documents Library, University of California, San Francisco. Bates Number: 2028364808-2028364812. Available from: https://www.industrydocumentslibrary.ucsf.edu/tobacco/docs/ftfv0120. Date accessed: 22/05/2018. 176. Boyse, S. (1990). Far East ETS Project (Note). British American Tobacco Records. Date Published: 17/07/1990. Archive: Truth Tobacco Industry Documents Library, University of California, San Francisco. Bates Number: 304028743-304028748. Available from: https://www.industrydocumentslibrary.ucsf.edu/tobacco/docs/lmjf0194. Date accessed: 22/05/2018. 177. Boyse, S. (1991). Visit to Argentina, 29-30 July 1991 and Update on Activities in South America (Letter). British American Tobacco Records. Date Published: 08/08/1991. Archive: Truth Tobacco Industry Documents Library, University of California, San Francisco. Bates Number: 304004032- 304004034. Available from: https://www.industrydocumentslibrary.ucsf.edu/tobacco/docs/zzwd0039. Date accessed: 12/05/2018. 178. Bialous, S., & Shatenstein, S. (2002). Profits Over People: Tobacco Industry Activities to Market Cigarettes and Undermine Public Health in Latin America and the Caribbean. San Fransciso, CA: University of California San Francisco (USCF) Center for Tobacco Control Research and Education. 179. Whist, A. (1989). ETS (Memo). Ness Motley Law Firm Documents. Date Published: 11/07/1989. Archive: Truth Tobacco Industry Documents Library, University of California, San Francisco. Bates Number: 2500048772-2500048781. Available from: https://www.industrydocumentslibrary.ucsf.edu/tobacco/docs/gmfy0042. Date accessed: 22/05/2018. 180. Roe, F. J. C. (1995). The Asia-Pacific Conference on the Built Environment: Trends and Challenges : Report on Meeting (Minutes; Report.). Philip Morris Records. Date Published: 08/07/1995. Archive: Truth Tobacco Industry Documents Library, University of California, San Francisco. Bates Master: 2048549068/2048549084. Available from: https://www.industrydocumentslibrary.ucsf.edu/tobacco/docs/mjcb0084. Date accessed: 6/5/2018. 181. Whist, A. (1989). ETS symposium (Memo). Philip Morris Records. Date Published: 08/08/1989. Archive: Truth Tobacco Industry Documents Library, University of California, San Francisco. Bates Number: 2023034633-2023034637. Available from: https://www.industrydocumentslibrary.ucsf.edu/tobacco/docs/zfnn0116. Date accessed: 22/05/2018.

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193. Sanders, T. (1999). WSA Categorization Form ETS Heart Disease (Form; Report). Philip Morris Records. Date Published: 28/10/1998. Archive: Truth Tobacco Industry Documents Library, University of California, San Francisco. Available from: https://www.industrydocumentslibrary.ucsf.edu/tobacco/docs/mkxm0063. Date accessed: 6/5/2018. 194. Herrman, J. L. (1991). [Fax from Dr J.L. Herrman, PCS of the World Health Organization to Dr G. "Tony" Vettorazzi of the International Toxicology Information Centre] (Facsimile). Philip Morris Records. Date Published: 31/05/1991. Archive: Truth Tobacco Industry Documents Library, University of California, San Francisco. Bates Number: 2028473393. Available from: https://www.industrydocumentslibrary.ucsf.edu/tobacco/docs/rjbp0108. Date accessed: 06/05/2018. 195. Vettorazzi Associates, & Vettorazzi, G. (1991). RE: Your FAX of May 23, 1991 [To Dr Helmut Reif, Philip Morris, Neuchatel, Switzerland, from Dr G. Vettorazzi] (Facsimile; Letter). Philip Morris Records. Date Published: 30/05/1991. Archive: Truth Tobacco Industry Documents Library, University of California, San Francisco. Bates Number: 2028391340-2028391344. Available from: https://www.industrydocumentslibrary.ucsf.edu/tobacco/docs/nkcg0111. Date accessed: 6/5/2018. 196. CORESTA, Vettorazzi Associates, & Vettorazzi, G. (1992). Consulting Agreement (Agreement resolution). Philip Morris Records. Date Published: 00/07/1992. Archive: Truth Tobacco Industry Documents Library, University of California, San Francisco. Bates Number: 2028391298- 2028391302. Available from: https://www.industrydocumentslibrary.ucsf.edu/tobacco/docs/gmyv0120. Date accessed: 06/05/2018. 197. International Toxicology Information Centre, Vettorazzi Associates, & Vettorazzi, G. (1992). Quarterly Report to CORESTA (Period: August-October 1992) (Report). Philip Morris Records. Date Published: 00/10/1992. Archive: Truth Tobacco Industry Documents Library, University of California, San Francisco. Bates Number: 2023114072-2023114074. Available from: https://www.industrydocumentslibrary.ucsf.edu/tobacco/docs/fnyn0117. Date accessed: 06/05/2018. 198. Kaiser, J. (1998). Tobacco consultants find letters lucrative. Science, 281, pp. 895-896. 199. Glantz, S. A., & Parmley, W. W. (1991). Passive smoking and heart disease. Circulation, 83, pp. 1- 12. 200. Rupp, J. P. (1989). [Letter from John Rupp, Covington & Burling, to John A. Dollisson, Area Director Philip Morris Asia, Inc.] (Letter; formerly privileged). Philip Morris Records. Date Published: 25/05/1989. Archive: Truth Tobacco Industry Documents Library, University of California, San Francisco. Bates Number : 2500048635-2500048640. Available from: https://www.industrydocumentslibrary.ucsf.edu/tobacco/docs/sncf0128. Date accessed: 06/05/2018. 201. Dastugue, J. R. B. (1991). 8th World Conference on Smoking & Health [Letter from J.R. Basso Dastugue to S. Boyse] (lETTER). British American Tobacco Records. Date Published: 14/06/1991. Archive: Truth Tobacco Industry Documents Library, University of California, San Francisco. Bates Number: 304004077-304004078. Available from: https://www.industrydocumentslibrary.ucsf.edu/tobacco/docs/nqfl0214. Date accessed: 06/05/2018. 202. Unknown. (1991). Candidates Selected: Argentina (Report). Philip Morris Records. Date Published: 25/07/1991. Archive: Truth Tobacco Industry Documents Library, University of California, San Francisco. Bates Number: 2503001508-2503001519. Available from: https://www.industrydocumentslibrary.ucsf.edu/tobacco/docs/nzwk0000. Date accessed: 6/5/2018. 203. Rupp, J. P. (1992). Meetings in Buenos Aires Relating to the ETS Consultants Program (memo; minutes; report). Philip Morris Records. Date Published: 13/11/1992. Archive: Truth Tobacco Industry Documents Library, University of California, San Francisco. Bates Number: 2023591390-

2023591399. Available from: https://www.industrydocumentslibrary.ucsf.edu/tobacco/docs/jqwx0111. Date accessed: 06/05/2018. 204. Unknown. (1993 [Estimate]). CIAR Applied Project: Confounders Study [Principal Investigator: Genevieve Matanoski, Johns Hopkins University] (Form). Philip Morris Collection. Date Published: 00/00/1993 [Estimate]. Archive: Philip Morris USA Public Document Dite, Philip Morris USA. Bates Number: 2023521995. Available from: http://www.pmdocs.com/core/downloadText?IDX=1&CVSID=7a54ccbba2df7d817b5318524a 02dffd. Date accessed: 8/5/2018. 205. Unknown. (1993 [Estimate]). CIAR Applied project: Confounders Study [Principal Investigators: Michael Guerin & Roger Jenkins, Oak Ridge National Laboratory] (Form). Philip Morris Collection. Date Published: 00/00/1993. Archive: Philip Morris USA Public Documents Site, Philip Morris USA. Bates Number: 2023521994. Available from: http://www.pmdocs.com/core/downloadText?IDX=7&CVSID=7a54ccbba2df7d817b5318524a 02dffd. Date accessed: 8/5/2018. 206. Lincoln, J. E. (1991). Final Friedman points and reduced funding requirements (Budget; Memo). Philip Morris Records; Congressman Bliley Philip Morris Collection. Date Published: 27/09/1990. Archive: Truth Tobacco Industry Documents Library, University of California, San Francisco. Bates Number: 2023223204-2023223205. Available from: https://www.industrydocumentslibrary.ucsf.edu/tobacco/docs/tyhg0128. Date accessed: 08/05/2018. 207. Unknown. (1989). Asia ETS Consultants Project. Philip Morris Records. Date Published: 25/02/1989. Archive: Truth Tobacco Industry Documents Library, University of California, San Francisco. Bates Number: 2500048655-2500048662. Available from: https://www.industrydocumentslibrary.ucsf.edu/tobacco/docs/fycf0128. Date accessed: 08/05/2018. 208. Billings, D. M. (1989). Memorandum to Mr. Rupp. Re: ETS Project Update (Memo). Philip Morris Records. Date Published: 10/04/1989. Archive: Truth Tobacco Industry Documents Library, University of California, San Francisco. Bates Number: 2500048643-2500048654. Available from: https://www.industrydocumentslibrary.ucsf.edu/tobacco/docs/zncf0128. Date accessed: 08/05/2018. 209. Von Maerestetten, C. (1989). Asia ETS Consultants Project (Internal Memo). Philip Morris Records. Date Published: 09/03/1989. Archive: Truth Tobacco Industry Documents Library, University of California, San Francisco. Bates Number: 2023034726. Available from: https://www.industrydocumentslibrary.ucsf.edu/tobacco/docs/znhd0126. Date accessed: 8/5/2018. 210. Unknown. (1990). Environmental Tobacco Smoke (Dictation; Memo). Philip Morris Records. Date Published: 00/00/1990. Archive: Truth Tobacco Industry Documents Library, University of California, San Francisco. Bates Number: 2021183691-2021183692. Available from: https://www.industrydocumentslibrary.ucsf.edu/tobacco/docs/gmlg0128. Date accessed: 8/5/2018. 211. Unknown. (1994). Latin American ETS Project: Strategy and Budget Proposal for 1994 (Draft Budget). Philip Morris Records. Date Published: Date unknown (1994). Archive: Truth Tobacco Industry Documents Library, University of California, San Francisco. Bates Number: 2503017246- 2503017260. Available from: https://www.industrydocumentslibrary.ucsf.edu/tobacco/docs/fgfk0000. Date accessed: 08/05/2018. 212. Rylander, R. (1997). [Letter from Professor Ragnar Rylander, Department of Environmental Medicine, University of Gothenbug, to R. Carchman] (Letter). Philip Morris Records. Date Published: 23/06/1997. Archive: Truth Tobacco Industry Documents Library, University of California, San Francisco. Bates Number: 2063590609. Date accessed: 8/5/2018.

213. Boyse, S. (1991). [Letter from Sharon Boyse to Pat S. Davies regarding Latin American ETS consultancy programme] (Letter). British American Tobacco Records. Date Published: 25/07/1991. Archive: Truth Tobacco Industry Documents Library, University of California, San Francisco. Bates Number: 300515204-300515205. Available from: https://www.industrydocumentslibrary.ucsf.edu/tobacco/docs/ntkn0191. Date accessed: 12/05/2018. 214. Covington & Burling. (1991). Memorandum. Re: Latin American candidate recommendations (Memo). Philip Morris Records. Date Published: 24/07/1991. Archive: Truth Tobacco Industry Documents Library, University of California, San Francisco. Bates Number : 2503001505. Available from: https://www.industrydocumentslibrary.ucsf.edu/tobacco/docs/kyyw0128. Date accessed: 12/05/2018. 215. Covington & Burling. (1992). Memorandum. Re: Latin America ETS Project (Memo). Philip Morris Records. Date Published: 26/03/1992. Archive: Truth Tobacco Industry Documents Library, University of California, San Francisco. Bates Number: 2503007503-2503007507. Available from: https://www.industrydocumentslibrary.ucsf.edu/tobacco/docs/syyw0128. Date accessed: 12/05/2018. 216. Rupp, J. P. (1988). [Letter from John Rupp of Covington & Burling to Bradley Brooks and Helmut Gaisch of Philip Morris] (Letter). Philip Morris Records; Congressman Bliley Philip Morris Collection. Date Published: 25/01/1988. Archive: Truth Tobacco Industry Documents Library, University of California, San Francisco. Bates Number: 2501474296-2501474301. Available from: https://www.industrydocumentslibrary.ucsf.edu/tobacco/docs/hgbd0024. Date accessed: 12/05/2018. 217. Remes, D. H. (1988). [Letter from David H. Remes, Covington & Burling, to Lee Pollak, Vice President and General Counsel Philip Morris International. Re: EEMA region Witness Project (Letter). Philip Morris Records; Congressman Bliley Philip Morris Collection. Date Published: 08/02/1988. Archive: Truth Tobacco Industry Documents Library, University of California, San Francisco. Bates Number : 2501474294-2501474295. Available from: https://www.industrydocumentslibrary.ucsf.edu/tobacco/docs/qkgd0021. Date accessed: 12/05/2018. 218. Unknown. (1988). ETS Coordination meeting (Meeting Agenda). Philip Morris Records. Date Published: 29/02/1988. Archive: Truth Tobacco Industry Documents Library, University of California, San Francisco. Bates Number: 2028364823. Available from: https://www.industrydocumentslibrary.ucsf.edu/tobacco/docs/rrfg0111. Date accessed: 12/05/2018. 219. McDaniel, P. A., Solomon, G., & Malone, R. E. (2005). The tobacco industry and pesticide regulations: Case studies from tobacco industry archives. Environmental Health Perspectives, 113, pp. 1659-1665. doi:10.1289/ehp.7452 220. Grüning, T., Gilmore, A. B., & McKee, M. (2006). Tobacco industry influence on science and scientists in Germany. American Journal of Public Health, 96, pp. 20-32. doi:10.2105/AJPH.2004.061507 221. MacKenzie, R., & Collin, J. (2008). "A good personal scientific relationship": Philip Morris scientists and the Chulabhorn Research Institute, Bangkok. PLoS Medicine, 5, pp. 1737-1748. doi:10.1371/journal.pmed.0050238 222. Gonzalez, A. M. (1991). [Letter from Aurora Marina Gonzalez, Manager Corporate Affairs Philip Morris International, to Sharon Boyse, British-American Tobacco Co. 'ETS Consultancy Program for Latin America'] (Letter). British American Tobacco Records. Date Published: 21/03/1991. Archive: Truth Tobacco Industry Documents Library, University of California, San Francisco. Bates Number: 300515301-300515302. Available from: https://www.industrydocumentslibrary.ucsf.edu/tobacco/docs/nfln0191. Date accessed: 12/05/2018. 223. Rupp, J. P. (1993). [Letter from John P. Rupp, Covington & Burling, to W. David Rowland, Rothmans International] (Letter). Philip Morris Records. Date Published: 12/03/1993. Archive:

Truth Tobacco Industry Documents Library, University of California, San Francisco. Bates Number: 2023053695-2023053700. Available from: https://www.industrydocumentslibrary.ucsf.edu/tobacco/docs/qmnp0116. Date accessed: 12/05/2018. 224. Ogilvy Renault, & Imperial Tobacco. (1991). ITL Documents: Apparent Difficulties and Relevant Facts; Series B ITL Documents Apparent Difficulties and Relevant Facts. Volume III. Project Viking. (Report). Brown & Williamson Records; Congressman Bliley Philip Morris Collection. Date Published: 00/08/1988; 18/12/1991. Archive: Truth Tobacco Industry Documents Library, University of California, San Francisco. Bates Number: 689466032-689466789. Available from: https://www.industrydocumentslibrary.ucsf.edu/tobacco/docs/kfcd0024. Date accessed: 12/05/2018. 225. Binns, R. (1988). [Letter from Richard Binns to A.L. Heard, Corporate R&D British American Tobacco. 'Communication of ETS Information'] (Letter). British American Tobacco Records. Date Published: 29/06/1988. Archive: Truth Tobacco Industry Documents Library, University of California, San Francisco. Bates Number: 401353733. Available from: https://www.industrydocumentslibrary.ucsf.edu/tobacco/docs/srhh0205. Date accessed: 12/05/2018. 226. Rupp, J. P. (1992). [Letter form John Rupp, Covington & Burling, to Armando Sobalvarro, Country Manager Philip Morris Latin America, Inc.] (Letter). Philip Morris Records. Date Published: 04/12/1992. Archive: Truth Tobacco Industry Documents Library, University of California, San Francisco. Bates Number: 2503011713-2503011716. Available from: https://www.industrydocumentslibrary.ucsf.edu/tobacco/docs/ppyw0128. Date accessed: 12/05/2018. 227. Rupp, J. P., & Davies, P. S. (1993). Memorandum. Re: Proposed 1994 Budget for the Latin American ETS Consultant Program (Memo). Philip Morris Records. Date Published: 15/09/1993. Archive: Truth Tobacco Industry Documents Library, University of California, San Francisco. Bates Number: 2503017276-2503017279. Available from: https://www.industrydocumentslibrary.ucsf.edu/tobacco/docs/gqyw0128. Date accessed: 12/05/2018. 228. Harris, D. (1993). [Telex from Donald Harriss to Clare Purcell. 'No subject'] (Telex). Philip Morris Records. Date Published: 28/06/1993. Archive: Truth Tobacco Industry Documents Library, University of California, San Francisco. Bates Number: 2023591071B-2023591072. Available from: https://www.industrydocumentslibrary.ucsf.edu/tobacco/docs/jpwx0111. Date accessed: 12/05/2018. 229. Boyse, S. (1992). Programme for 8th World Conference on Tobacco or Health (Letter; Report; Memo). British American Tobacco Records. Date Published: 23/03/1992. Archive: Truth Tobacco Industry Documents Library, University of California, San Francisco. Bates Number: 300504132- 300504157. Available from: https://www.industrydocumentslibrary.ucsf.edu/tobacco/docs/tkhm0203. Date accessed: 12/05/2018. 230. Di Marco, G. R. (1988). [Letter from G. Robert Di Marco, Senior Vice President Research and Development R.J. Reynolds Tobacco Company, to F.H. Kemper. 'Consulting agreement'] (Letter; Contract). RJ Reynolds Records. Date Published: 06/01/1988. Archive: Truth Tobacco Industry Documents Library, University of California, San Francisco. Bates Number: 506132055- 506132059. Available from: https://www.industrydocumentslibrary.ucsf.edu/tobacco/docs/jxmm0100. Date accessed: 12/05/2018. 231. Besques, J., & Sherif, R. (1990). Finland - Research Projects (Inter-Office Correspondence). Philip Morris Records. Date Published: 05/01/1990. Archive: Truth Tobacco Industry Documents Library, University of California, San Francisco. Bates Number: 2048909354-2048909355. Available from: https://www.industrydocumentslibrary.ucsf.edu/tobacco/docs/kzff0128. Date accessed: 12/05/2018.

232. Lehtonen, P., & Granfelt, J. (1990). Study of the Economic Consequences of Smoking in Finland (Letter). Philip Morris Records. Date Published: 19/01/1990. Archive: Truth Tobacco Industry Documents Library, University of California, San Francisco. Bates Number: 2048909192- 2048909193. Available from: https://www.industrydocumentslibrary.ucsf.edu/tobacco/docs/phlj0114. Date accessed: 12/05/2018.

5 Taxonomy Application

5.1 Introduction

The aim of this chapter is to apply the taxonomy of tobacco industry use of CPA Expert Consultants (as described in the previous chapter) to another industry context: Alcohol. The purpose of this chapter is to demonstrate parallels and differences between how the tobacco and alcohol industries use expert CPA consultants. The three cases studied resonate with the Taxonomy developed using tobacco industry data in the previous chapter. Four key findings from this analytical task include:

1. On average, the alcohol cases resonate with four-fifths (80 per cent) of the Taxonomy’s 23 characteristics. 2. All three cases consistently supported the same 16 characteristics – 70 per cent of the taxonomy’s characteristics. 3. There was partial resonance across 5 characteristics, where some – but not all – cases supported these characteristics. 4. Only 2 characteristics were unsupported by all three cases studied.

This chapter outlines the taxonomy application process and describes how each characteristic aligns with the cases studied.

5.2 Results of the cases studied

The three cases studied resonated with the Taxonomy developed using tobacco industry data. On average, the alcohol cases resonate with four-fifths (80 per cent; n=18.3) of the 23 taxonomy characteristics. As shown in Figure 9, all three cases supported the same 17 characteristics (where Agreementn=3 in Table 8), representing 74 per cent of the taxonomy characteristics. These are:

• D1-C1. Growing academic research base on product risks; • D1-C4. Building regulatory pressure in light of C1-C3; • D1-C5. Market performance under threat from C1-C4; • D2-C1. Resist and delay product restrictions in given jurisdiction;

• D2-C2. Neutralise influence of policy adversaries; • D2-C3. Enhance credibility of sponsor industry; • D2-C4. Generate uncertainty in product risk discourse; • D2-C6. Use lawyers to coordinate Consultancy Programmes; • D3-C1. Produce and suppress research on product risks; • D3-C2. Monitor, Review or Criticise extant research on product risks; • D3-C5. Troubleshoot PR issues facing the sponsor industry; • D4-C1. Paid by the industry for services; • D4-C2. 3rd party independent scientist or academic; • D4-C3. Affiliated with reputable organisations and institutes; • D4-C4. Serve as both researchers and as PR or Gov't relations professionals; and • D4-C5. Work outputs favour industry policy position. • D3-C3. Disseminate industry interpretation of risks; and

There was partial agreement across four characteristics, where some – but not all – cases

(Agreementn=1 or 2 in Table 8) supported these characteristics. These are:

• D1-C3. Depreciating public image and regulatory alliances in light of C1 and C2; • D2-C5. Subvert scientific process; • D2-C8. Recycle Consultancy Programmes in numerous jurisdictions; • D3-C4. Facilitate industry relationships with decision-makers.

Only two characteristics were unsupported (where Agreementn=0 in Table 8) by all three cases studied. These are:

• D1-C2. Growing threat of litigation in light of C1; and • D2-C7. Collaborate with competitors to fund and implement Consultancy Programmes.

While Dimension 2 (Strategic approaches to using CPA Consultants) had the most coded sections of text for Cases A, B and C (n=361, 41 and 26 respectively), only Dimension 4 (Qualities of Industry CPA Consultants) was consistently supported across all characteristics in all three cases studied.

With 702 highlighted sections of text coded against the taxonomy, and 20 characteristics substantiated in these coded sections, the results of Case A are the strongest of the three cases

© Copyright by Lisa Margaret Buffinton 2019 | All Rights Reserved 109 Lisa Margaret Buffinton (ANU UID: U4699563) studied. This appears to reflect the larger sample of documents (n=17) available for analysis for Case A as compared to Cases B (n=3) and C (n=4), as shown in Table 8.

Figure 9: Resonance of characteristics as measured by the count of characteristics across the three cases studies

1 2

Resonance among all 3 cases Resonance with 1 case Resonance with 0 cases Resonance among 2 cases

Table 8: Taxonomy Application results for the three cases.

(/3)

33%

67%

33%

100%

Agreement

)

(

Agreement

10%

16%

23%

29%

39%

26%

51%

Total

(/845)

)

845

132

193

241

333

220

428

Total (

11%

25%

19%

11%

21%

42%

49%

(/53)

Case C

)

Case ( C

17%

24%

22%

24%

33%

41%

46%

(/90)

Case B

)

(

Case B

11%

14%

23%

30%

40%

23%

51%

(/702)

Case A

)

702

163

208

281

161

361

(

Case A

)

-C

); CHARACTERISTIC (D

TAXONOMY DIMENSION (D

Totals

D4-C5. Work outputs favour policy industry position

D4-C4. Serve as both researchers and as PR or Gov't relations professionalsand as PR or D4-C4. Gov't relations as bothServe researchers

D4-C3. Affiliated with reputable organisations and institutes reputable D4-C3. with Affiliated

D4-C2. 3rd party independent scientist or academic D4-C2. scientist 3rd party independent

D4-C1. by forindustry Paid services the

D4. QualitiesD4. of Industry CPA Consultants

D3-C5. sponsor Troubleshoot PR the issues facing industry

D3-C4. Facilitate industry relationships with decision-makers with relationships industry D3-C4. Facilitate

D3-C3. Disseminate industry interpretation of risks D3-C3. interpretation industry Disseminate

D3-C2. Monitor, Review or Criticise extant research on product risks research extant D3-C2. or Criticise Review Monitor,

D3-C1. Produce and suppress research onD3-C1. product and suppress risks Produce research

D3. TacticalD3. activities of Industry CPA Consultants

D2-C8. Recycle Consultancy Programmes numerous Consultancy jurisdictions in D2-C8. Recycle

D2-C7. Collaborate with competitors Programmes D2-C7. towith fund Consultancy Collaborate and implement

D2-C6. Use lawyers to coordinate Consultancy Programmes Consultancy toD2-C6. coordinate lawyers Use

D2-C5. Subvert scientific process D2-C5. Subvert scientific

D2-C4. Generate uncertainty in product discourse risk in uncertainty D2-C4. Generate

D2-C3. Enhance credibility of sponsor credibility D2-C3. industry Enhance

D2-C2. Neutralise influence of policy adversaries influence D2-C2. Neutralise

D2-C1. Resist and delay product restrictions in given jurisdiction given in D2-C1. product Resist and delay restrictions

D2. Strategic approachesD2. to CPAusing Consultants

D1-C5. Market performance under threat from C1-C4 threat under performance D1-C5. Market

D1-C4. Building regulatory pressure in light of light C1-C3 in pressure regulatory D1-C4. Building

D1-C3. Depreciating public image and regulatory alliances in light of light C1 and in C2 alliances andimage regulatory public D1-C3. Depreciating

D1-C2. Growing threat of litigation in light of light C1 in of D1-C2. litigation threat Growing D1-C1. Growing academic research base on product risks research D1-C1. academic Growing D1. IndustryD1. rationales using CPA for Consultants

5.3 Case A: Alcohol advertising policy review

This case concerns a report canvassing research on the health risks associated with alcohol promotions. The report was produced by Director of the Centre for Health Initiatives, Professor Sandra Jones [233], at the request of the NSW Office of Liquor Gaming and Racing (OLGR) [234]. This report (the “Jones Report”) formed part of OLGR’s investigation into whether “shopper docket” liquor promotionsix should be prohibited under section 102A of the Liquor Act 2007 (NSW) (the “Act”).x The sections below discuss the context of this case and its resonance with the Taxonomy.

5.3.1 Case A context

In 2013, OLGR initiated an investigation into ‘shopper dockets’ after the Director General of the NSW Department of Trade and Investment,xi Mark Paterson, received two complaints, from members of the public. One complaint was from a member of the NSW Legislative Council, Dr John Kaye [235]. Dr Kaye was contacted by a concerned constituent about these promotional materials. The other complaint was from an anonymous member of the public [236]. The shopper docket in question offered customers a “bonus” six-pack of beer with the purchase of a bottle of wine from a nationwide retail liquor outlet chain in Australia [237, p. 3].

Following the receipt of the two complaints, OLGR’s Director General of Compliance, Paul Newson, wrote to Woolworths stating:

I have formed a preliminary view that this [promotional] activity presents an increased risk of encouraging the misuse and abuse of liquor as contemplated by section 102A of the Liquor Act 2007… You are invited to show cause by 15 April 2013 why a notice to restrict or prohibit the licensee from carrying on or permitting these activities should not be issued [237, p. 1].

Woolworths disagreed. OLGR received an 18-page response from Woolworths’ lawyer, Tony Schwartz of Back Schwartz Vaughan (BSV)xii [238]. This letter claimed that more evidence was needed to demonstrate that the promotion causes risky behaviours of concern to OLGR. Their

ix Shopper dockets are described by Caterina Giorgi and Amy Ferguson as being ‘[…] coupons or vouchers for free or discounted alcohol, or petrol products printed at the bottom of supermarket shopping receipts. In relation to alcohol, these dockets are used to promote alcohol discounts, such as two-for-one offers. Both of the big [Australian liquor] retailers (Woolworths and Coles) use shopper dockets to promote alcohol’ [15]. x Section 102A of the Act empowers the Director-General of OLGR to restrict or prohibit activities that encourage misuse or abuse of liquor. xi The NSW Department of Trade and Investment housed OLGR at the time. xii BSV is a law firm specialising in liquor and gambling licensing matters in Australia.

© Copyright by Lisa Margaret Buffinton 2019 | All Rights Reserved 112 Lisa Margaret Buffinton (ANU UID: U4699563) letter further notes that ‘this type of promotion is common place within the liquor industry’ [238, p. 2], and includes Woolworths data on customers who redeemed the offer.

OLGR then approached an academic researcher on alcohol advertising and social marketing, Professor Sandra Jones, on 13 May 2013 ‘to provide authoritative advice on this matter’ [234, p. 1]. OLGR requested of Professor Jones that:

In the context of the show cause correspondence [attached in-confidence], section 201A of the Act and the [Liquor Promotion] Guidelines, I request you prepare a written report to provide independent and expert advice on the following matters, including appropriate references to established research, national health guidelines and your opinion where relevant [234, pp. 1-2].

The ‘following matters’ were ten questions stated in OLGR’s letter to Professor Jones. An image of the ten questions in the original letter is in Figure 10.

Figure 10: Ten questions posed by OLGR to Professor Jones in a letter dated 13 May 2013.

There are 25 citations in Professor Jones’ Report. Of these, most (n=14; 56 per cent) were published in peer-reviewed journals. Over a third (n=9; 36%) referred to grey literature sources published by government institutions, inter-governmental bodies, and other civic organisations. It is not known whether Professor Jones received a fee for services to OLGR in producing the Report. The 13 May letter from OLGR’s Director of Compliance does not offer a fee for Professor Jones’ advice.

5.3.1.1 Woolworths' response

The Director of Compliance in OLGR wrote Woolworths’ lawyer, Tony Schwartz of BSV, on 21 May 2013; attached was a copy of the Jones Report [239]. The letter also notified Schwartz that to ‘test compliance with the controls outlined on the “receipt reward”’, an OLGR compliance

© Copyright by Lisa Margaret Buffinton 2019 | All Rights Reserved 113 Lisa Margaret Buffinton (ANU UID: U4699563) officer visited a Woolworths store [239, p. 1]. The compliance officer reported that they were able to redeem a “shopper docket” promotion more than once with the same receipt at a Woolworths-owned outlet [240]. Woolworths was invited to make a submission in response to the Jones’ Report and the compliance officer’s statement.

On 4 July 2013 Schwartz submitted Woolworths’ response to the 21 May letter from OLGR’s Director of Compliance [241]. The 25-page response expressed the view that the Jones Report authored by “PSJ” (the abbreviation used by Schwartz when referring to Professor Sandra Jones) was ‘biased’, and that consequently:

PSJ can hardly be described as an independent expert… [The Jones Report] does not assist the OLGR in determining the impact of the [“shopper docket” promotion] [241, p. 4].

Woolworths’ Response was further articulated in five attachments to the 4 July letter from Schwartz, including:

• 22-page critical review by BSV of the literature cited in Professor Jones’ Report [242]. • 12-page critical review of Professor Jones’ Report by Professor Adrian Furnham, University College London (commissioned by Woolworths), dated 20 May 2013 [243]. This review was accompanied by the following: o 16-page appendix discussing ‘the politics of alcohol advertising’, ‘alcohol advertising to young people’, and ‘prevention, control and legislation’; o 8-page reference list; and o 3-page curriculum vitae (CV) of Professor Furnham [244]. • 12-page critical review of Professor Jones’ Report by Professor David Hanson, State University of New York (commissioned by Woolworths) dated 20 May 2013 [245], accompanied by a 13-page CV of Professor Hanson [246].

In March 2014, copies of the Woolworths Response were provided to FARE in response to a request for the documents under the Government Information (Public Access) Act 2009 (NSW). These copies were analysed using the taxonomy described in the previous chapter, and the method described in section 3.8.2 of the Research Approach chapter. The results of this analysis are documented in the following sections.

In this case, the regulatory authority did not concur with the conclusions in Sandra Jones’ report; the regulator agreed with Adrian Furnham and John Henstridge’s conclusions that

© Copyright by Lisa Margaret Buffinton 2019 | All Rights Reserved 114 Lisa Margaret Buffinton (ANU UID: U4699563) causality between the promotion and alcohol harms were not directly linked. Regulator consideration of original research transmitted by Sandra Smith, and consultant critiques of this report transmitted by Adrian Furnham and David Hanson via Woolworths’ lawyer, Tony Schwartz, are outlined in Appendix 8.2 of this thesis.

5.3.2 Case A resonance with taxonomy

Analysis of Case A documents resulted in 702 highlighted sections of text that were coded against the Taxonomy characteristics. As shown in Table 9, the Case A documents resonated with all four dimensions of the Taxonomy, and 87 per cent (n=20) of Taxonomy characteristics. Case A documents resonated with all characteristics of dimensions 3 (‘Tactical activities of Industry CPA Consultants’) and 4 (‘Qualities of Industry CPA Consultants’). While Case A documents resonated with most characteristics in Dimensions 1 (‘Industry rationales for using CPA consultants’) and 2 (‘Strategic approaches to using CPA consultants’), these documents did not resonate with three Taxonomy characteristics. These are:

• D1-C2. The growing threat of litigation (in light of growing academic research base on product risks) as a rationale for using CPA Consultants. • D2-C7. Collaboration with competitors as a strategic approach to using CPA Consultants. • D2-C8. The strategic recycling of Consultancy Programmes in numerous jurisdictions.

As shown in Figure 11, the characteristic with the most coded sections (n=281) from the Case A documents is the use of CPA Consultants to enhance the credibility of the sponsor industry (D2-C4). This is followed by the tactical use of Industry CPA Consultants to Monitor, Review or Criticise extant research on product risks (D3-C2) and the strategic use of CPA consultants to neutralise the influence of policy adversaries (D2-C2), with 163 and 161 coded sections of text respectively.

Table 9: Count and proportion of highlighted sections of text from Case A documents that were coded against the 23 characteristics of the Taxonomy.

TAXONOMY DIMENSION (Dn); CHARACTERISTIC (Dn-Cn) Case A Case A (n) (/702) D1. Industry rationales for using CPA Consultants 36 5% D1-C1. Growing academic research base on product risks 2 0% D1-C2. Growing threat of litigation in light of C1 0 0% D1-C3. Depreciating public image and regulatory alliances in light of C1 and C2 4 1% D1-C4. Building regulatory pressure in light of C1-C3 9 1% D1-C5. Market performance under threat from C1-C4 26 4%

TAXONOMY DIMENSION (Dn); CHARACTERISTIC (Dn-Cn) Case A Case A (n) (/702) D2. Strategic approaches to using CPA Consultants 361 51% D2-C1. Resist and delay product restrictions in given jurisdiction 20 3% D2-C2. Neutralise influence of policy adversaries 161 23% D2-C3. Enhance credibility of sponsor industry 6 1% D2-C4. Generate uncertainty in product risk discourse 281 40% D2-C5. Subvert scientific process 9 1% D2-C6. Use lawyers to coordinate Consultancy Programmes 8 1% D2-C7. Collaborate with competitors to fund and implement Consultancy Programmes 0 0% D2-C8. Recycle Consultancy Programmes in numerous jurisdictions 0 0% D3. Tactical activities of Industry CPA Consultants 208 30% D3-C1. Produce and suppress research on product risks 17 2% D3-C2. Monitor, Review or Criticise extant research on product risks 163 23% D3-C3. Disseminate industry interpretation of risks 51 7% D3-C4. Facilitate industry relationships with decision-makers 2 0% D3-C5. Troubleshoot PR issues facing the sponsor industry 1 0% D4. Qualities of Industry CPA Consultants 97 14% D4-C1. Paid by the industry for services 2 0% D4-C2. 3rd party independent scientist or academic 18 3% D4-C3. Affiliated with reputable organisations and institutes 6 1% D4-C4. Serve as both researchers and as PR or Gov't relations professionals 3 0% D4-C5. Work outputs favour industry policy position 77 11% Totals 702 100%

Figure 11: Ranking (in descending order) of the taxonomy characteristics by the count of highlighted sections of text from Case A documents that were coded against the 23 taxonomy characteristics.

Order of Case A resonant characteristics by number of References per characteristic

D2-C4 281 D3-C2 163 D2-C2 161 D4-C5 77 D3-C3 51 D1-C5 26 D2-C1 20 D4-C2 18 D3-C1 17 D2-C5 9 D1-C4 9 D2-C6 8 D4-C3 6 D2-C3 6 D1-C3 4 D4-C4 3 D4-C1 2 D3-C4 2 D1-C1 2 D3-C5 1 D2-C8 0 D2-C7 0 D1-C2 0

0 50 100 150 200 250 300

Case A (n)

5.3.2.1 Dimension 1: Rationale

The analysis found that, in this case, Woolworths used Expert CPA Consultants to address a unique information-based business threat. The threat takes the form of technical and scientific information finding that alcohol promotions – specifically, point-of-sale promotions, like ‘shopper dockets’ – are associated with harmful levels of alcohol consumption.

There were 36 references which supported the resonance of this dimension with Woolworths’ practices. This represents five per cent of references sourced from the Case A GIPA documents sample (see Table 9). This Case resonated with four of the five Dimension 1 characteristics (D1- C1, -C3, -C4, -C5). Case A documents do not present evidential references supporting D1-C2 (‘Firms face litigation supported by information associating their products and practices with health risks’).

Case A documents present two references supporting D1-C1 (‘credible information associating the firm’s product and practices with health risks is growing, and its influence has the potential to ‘spill over’ beyond academic domains’). The significance of this Information Threat is reflected in the scale of Woolworths’ response to Professor Jones’ Report. Woolworths, through their lawyer, Tony Schwartz, produced a 25-page letter criticising Professor Jones’ Report [241] alongside a 22-page critique of all reference sources cited in Professor Jones’ Report [242]. In addition, Woolworths’ response included two commissioned critiques of Professor Jones’ Report, prepared by two Expert CPA Consultants. These lengthy critiques included a 51-page submission from Professor Adrian Furnham of University College London [243; 244], and a 25- page submission from Emeritus Professor David Hanson of the State University of New York [245; 246].

Case A documents present four evidential references supporting D1-C3 (‘The Information Threat’s credibility weakens the firm’s credibility, adversely affecting its public image and alliances’). The potential impact of the Information Threat on Woolworths’ credibility is reflected in Woolworths’ defensive response to a newspaper article about the firm receiving the ‘show cause’ notice. In a letter (dated 30 April 2013) to the Minister whose portfolio included OLGR, Woolworths Public Affairs Manager, Andrew Wilsmore, claims that:

It is also concerning that this matter has entered the public domain, at significant reputational risk to [Woolworths…] We believe that our detailed submissions to the OLGR […] will satisfy it

that the shopper-docket promotion does not represent an increased risk of encouraging the misuse and abuse of liquor […] [247, p. 1].

Case A documents present nine evidential references supporting D1-C4 (‘The Information Threat generates a stronger imperative for regulators to restrict marketing of the risky product’). Woolworths’ concern that this Information Threat would lead to further regulation (D1-C4) is suggested in how their Public Affairs Manager reminds the Minister of the government’s commitment to ‘red tape reduction’:

In your review of the 'show cause' notice and our substantive response, we also draw your attention to […] new requirements which specifically sets out expectations for agencies to impose a 'one on, two off' requirement for new legislation and introduce a target to reduce regulatory costs for business and the community by 20 per cent by June 2015 [247, p. 2].

The significance of D1-C4 was also reflected in a letter from Woolworths’ lawyer, Tony Schwartz, to OLGR’s Director of Compliance, Paul Newson. This letter (dated 29 May 2013) questions the basis for OLGR to respond to alcohol consumption risks by increasing regulation of alcohol promotion:

Do you have the power to restrict the use of the "shopper docket" type promotions by Woolworths (as the restriction of discounting in this way is clearly anti-competitive and contrary to the public interest)? Woolworths is of the view that the restriction on discounting of packaged liquor (generally) is beyond the scope of your powers under s.102A of the NSW 2007 Liquor Act (the Act) and its intended purpose. [248, p. 1]

Case A documents present 26 evidential references supporting D1-C5 (‘The Information Threat’s non-market influence (in terms of litigation, public image and regulation) adversely affects the firm’s market performance’). Schwartz was quoted by OLGR compliance officer, James Shand, as stating in a telephone call that Woolworths was ‘concerned that the show cause letter was “issued without thought”’ and “attacked the fundamental concept of discount liquor”’ [249, p. 1]. Later, Schwartz went on to infer that restricting this type of alcohol promotion would affect Woolworths’ market share (though he insisted that it would not affect the size of the overall alcohol market):

Typically [Shopper Dockets are] supported by a wine/beer producer because they want to encourage customers to try their products, and in doing so increase their market share. […] Therefore, the retailer and producer have a common aim, namely to increase their share of sales that constitute the liquor market rather than increasing the size of the market itself [241, p. 10].

5.3.2.2 Dimension 2: Strategy

The analysis found that, in this case, Woolworths adopted special Approaches to using Expert Consultants as CPA agents challenging the Information Threat (D2). There were 361 references sourced from Case A GIPA documents that support the resonance of this dimension with Woolworths practices. There are This Case resonated with six of the eight Dimension 2 characteristics (D2-C1, -C2, -C3, -C4, -C5, -C6). Case A documents did not present evidential references for D2-C7 (‘Firms collaborate with their competitors to operate Consultant Programs in response to mutual Information Threats faced by the industry at large’); nor for D2-C8 (‘Firms also recycle Consultant Programs in numerous jurisdictions to pre-empt or respond to the Information Threat gaining influence in other markets’).

Case A documents present 20 evidential references supporting D2-C1 (‘Firms use Expert Consultants to resist and delay restrictions on the marketability of the risky product’). As reflected in the Schwartz quote below, Expert CPA Consultants created opportunities for Woolworths to delay regulatory proceedings:

We have also located and engaged our own independent experts to respond to her [Professor Jones’] report. We are waiting for their reports but both are currently away having commitments in other countries and therefore require some short additional time to finish their response as do we. Accordingly we request a further 7 days from the 28th June to do so namely by 5 pm on 5 July next [250, p. 1].

Case A documents presented 281 evidential references supporting D2-C2 (‘Firms use Expert Consultants to generate uncertainty in the product risk discourse’). In this case, this characteristic had the most evidential references out of all 23 characteristics (see Figure 11). Summarising the themes of these 281 evidential references, Woolworths’ used their Expert CPA Consultants to generate uncertainty in alcohol policy risk discourse by:

• Questioning the quality of research; • Questioning evidence of association between product and risk; • Questioning effectiveness of population-wide measures; • Selectively quoting other experts/authorities; and • Claiming science has been manipulated to fulfil a political agenda.

The opinions of Furnham and Hanson, as expressed in their submissions for Woolworths, resonate with the points above. For example, Furnham asserted that Professor Jones’ advice

© Copyright by Lisa Margaret Buffinton 2019 | All Rights Reserved 119 Lisa Margaret Buffinton (ANU UID: U4699563) citing the Australian Federal Government’s NHMRC Alcohol Guidelines was unreliable on the basis that:

[It] is misleading for Professor Jones to suggest there is agreement among researchers or the general public as to what precisely defines "excessive consumption" [… see point E above]. It clearly varies on the particular circumstances [… see point C above]. Therefore, Professor Jones' conclusion that "four standard drinks in a single drinking occasion is "excessive" consumption" is not supported by the literature and I believe is incorrect [243, p. 5].

Hanson similarly dismisses the sources cited in the Jones report, and strongly rebukes Professor Jones’ interpretation of these sources:

Prof. [sic] Jones also implies that in the U.S. research on alcohol advertising and promotion at off-premise outlets demonstrates that they lead to binge drinking. However, the study she referenced as support only examined the availability of beer, not other alcoholic beverages. It is both erroneous and misleading to generalised [sic] from a study of beer to all other forms of alcoholic beverage [see point E above]. If it is not intentionally deceptive, it is another example of Prof. Jones' strong bias against alcohol advertising [… see point E above]. In addition, the authors of the referenced study [… Kuo, Wechsler, Greenberg and Lee] explicitly state that in their research "causality cannot be determined" [… see points B and D above]. Based on the published research literature, it is my opinion that there is no evidence that point-of-sale promotions such as the shopper docket program offered by Woolworths Limited (which I have examined in detail), or similar point-of-sales promotions have any adverse impact on alcohol consumption behaviours [… see point A above] [245, p. 7].

Case A documents present nine evidential references supporting D2-C3 (‘Firms use Expert Consultants to subvert scientific processes’). Woolworths’ Consultants create a false impression of scientific or academic integrity of their work, and of others’ work they cite. For example, Adrian Furnham cites several references in support of his main argument that there is an insignificant relationship between alcohol advertising and alcohol consumption:

British (Duffy, 1989), Canadian (Lariviere et al. 2000) and the USA (Lee & Trembling, 1992) each concluded the same as did a recent review (Luik et al. 2008): there is little or no relationship between alcohol advertising spend and enlarging the market by increased alcohol consumption. However the advertising mix does change both brand and type of alcohol consumed [243, pp. 19-18 (Appendix)].

The ‘Duffy, 1989’, ‘Lariviere et al. 2000’ and ‘Lee & Trembling, 1992’ citations are missing from the Furnham Report’s reference list. Nonetheless, these untraceable references give readers the impression that the Consultant’s argument is well-founded. The ‘Luik et al. 2008’ paper was included in the Reference List which cites it as being published in the International Journal of Advertising. However, upon further searches through the online collections of this journal,

© Copyright by Lisa Margaret Buffinton 2019 | All Rights Reserved 120 Lisa Margaret Buffinton (ANU UID: U4699563) this paper was not found to have been published in in the International Journal of Advertising at all.

Hanson similarly presents a quote attributed to Ellickson and colleagues (whose research was cited in the Jones Report in support of her view), to infer that they are sceptical of Jones’ conclusions. See Figure 12. However, this quoted statement was not made by Ellickson et al. In fact, it was made by Furnham in his unpublished report Alcohol and Young Adults [251, p. 65] – see Figure 13. It is worth noting that the reference list in Furnham’s Consultant Report cites Diageo – a multinational alcohol beverage company–as the publisher of a report titled Alcohol and Young Adults (see Figure 14) [243, p. 30].

Figure 12: The Hanson Report incorrectly attributed the quote (see highlighted text below) to Ellicksen and colleagues [245, p. 10], rather than to Furham’s own unpublished report.

Figure 13: The comment attributed to Ellicksen and colleagues in the Hanson Report (see figure above), was in fact stated in Alcohol and Young Adults [251, p. 65] - a monograph authored by Professor Furnham (see highlighted text below).

Figure 14: The Furnham Report cites Diageo–a multinational alcohol beverage company–as the publisher of his report titled ‘Alcohol and Young Adults’ [243, p. 30].

Case A documents present 161 evidential references supporting D2-C4 (‘Expert Consultants are used neutralise the policy influence of the Information Threat’s proponents’). While Professor Jones was selected by NSW OLGR as an ‘independent expert’ and requested to ’provide authoritative advice on this matter’ [234, p. 1], Woolworths and its CPA agents held contrary views of Professor Jones’ integrity and suitability to advice OLGR on this matter. The Hanson Report presents Professor Jones as an ‘agenda’-driven academic with ‘a poor or biased reading of the long and complicated literature in this area’ [243, p. 12]. The Hanson Report further states that the Jones Report ‘failed to provide good scientific evidence to support her position’ [243, p. 12]. The Furnham Report presents the Jones Report as being ‘so consistently and seriously invalidated by numerous methodological weaknesses and biases that it cannot be considered either an impartial nor a scientific document’ [245, p. 12]. Mr Schwartz’s submission (on behalf of Woolworths) reinforces the conclusions of Professors Hanson and Furnham regarding Professor Jones, in an effort to neutralise the policy influence of her Report (see Figure 15).

Figure 15: Schwartz commentary reinforcing the conclusions of Professors Hanson and Furnham regarding professor Jones. Screenshot of Schwartz’s letter-cum-report to OLGR [241, p. 24].

Case A documents present six evidential references supporting D2-C5 (‘Firms use Expert Consultants to enhance the credibility of the firm’s policy position in relation to the health risks

© Copyright by Lisa Margaret Buffinton 2019 | All Rights Reserved 122 Lisa Margaret Buffinton (ANU UID: U4699563) of its products, and regulatory responses to those risks’). This strategic use of expert CPA Consultants to enhance the credibility of Woolworths’ policy position in Case A is plainly articulated in Schwartz’s submission (on behalf of Woolworths) to OLGR – see Figure 16.

Figure 16: Schwartz enhancing the credibility of Woolworths’ policy position by referring to Professors Hanson and Furnham’s reports. Screenshot of Schwartz’s letter-cum-report to OLGR [241, p. 24].

The Case A data shows that Woolworths’ Consultants held their views (i.e. disseminating Woolworths’ preferred interpretation of risks and policy solutions) to a lesser standard of credibility than Professor Jones. Despite Professor Hanson’s submission making six references to his own opinion – none of which were cited supportive research or data – Professor Hanson nonetheless argued that ‘Prof. [sic] Jones failed to cite any references in support of her opinion [...] Therefore, her answer should be disregarded as speculative and biased’ [245, p. 12]. This double-standard is endorsed by Schwartz in his letter-cum-report to OLGR (see Figure 16). In reading through the submission produced by the other consultant for Woolworths, Professor Furnham, the Reference List for Adrian Furnham’s Report was a considerable length: eight pages in length. Despite its apparent length, the data showed that:

• Many of the in-text citations were not correspondingly recorded in the Reference List; and • There were citations in the Reference List which were not cited in the body of Furnham’s submission.

This was such a curious phenomenon in the data that this researcher saw fit to examine the Reference List in Furnham’s submission in further depth. This in-depth examination found 152 distinct references in the reference list. Of these, only 21 (14 per cent) matched an in-text citation, while 131 (86 per cent) had no matches with the in-text citations. Hence, most references in the reference list are irrelevant and do not correspond with the contents of Furnham’s Report and its Appendix.

This researcher took a strict interpretation of the matches between in-text citations and the Reference list citations per the standards of a high quality publication. If the in-text citation did not perfectly match with a reference list citation, it was deemed “untraceable”. That is, their existence could not be confirmed. This process found 38 distinct in-text references; of which, three-fifths (61 per cent, n=21) matched a citation in the Reference List, while over a third (39 per cent, n=17) were deemed untraceable.

Most (82%, n=31) in-text references appeared to be cited in support of Furnham’s argument, while nearly a fifth (18 per cent, n=7) appeared to be the subject of criticism by Furnham. Taking a closer look at all 38 in-text references,

• Over two-fifths (45 per cent, n=17) had the combined qualities of appearing to support Furnham’s argument and matching a Reference List citation. • Over a third (37 per cent, n=14) had the combined qualities of appearing to support Furnham’s view and not matching a Reference List citation. • Four (n=4) had the combined qualities of appearing to be subject to Furnham’s criticism and matching with a Reference List citation . • Three (n=3) had the combined qualities of appearing to be subject to Furnham’s criticism, and being untraceable (i.e. not matching with a Reference List citation).

In-text references that appeared the most number of times were two traceable papers authored by Furnham himself which appear to have been published by Diageo (see Binge Drinking and Alcohol and Young Adults in Figure 14) and one untraceable paper authored by ‘Saffer (2002)’. All of these citations appeared three times in-text. In support of his argument, Furnham cited four untraceable in-text references twice: ‘Duffy (1989)’, ‘Lariviere et al (2000)’, ‘Lee & Trembling (1992)’, and ‘Luik et al. (2008)’.

Thus, the data revealed that, there was very little credible research supporting the submission and that the “surplus” citations were included in the paper to serve to create a face value impression that the submission was extensively researched and robust.

Case A documents present eight evidential references supporting D2-C6 (‘Firms also use external lawyers to coordinate their “Consultant Programs”’). Woolworths used a law firm, Back Schwartz Vaughan (BSV), for all correspondence with the regulator (OLGR) in Case A. There are ten documented correspondences from BSV to OLGR in relation to Case A in FOI file

© Copyright by Lisa Margaret Buffinton 2019 | All Rights Reserved 124 Lisa Margaret Buffinton (ANU UID: U4699563) number 14/37. This included the e-mails, telephone calls and letters-cum-reports dating from

25 March 2013 to 4 July 2013 [238; 241; 242; 248; 249; 250; 252; 253; 254; 255]. It is significant that Woolworths–not least in terms of presumed expenses involved–commissioned a senior partner in the law firm (Tony Schwartz) to represent Woolworths in this case. In an e-mail to OLGR, Schwartz stated that: ‘We have also located and engaged our own Independent experts to respond to her report’ [255, p. 1]. This indicates that BSV was commissioning the services of Expert Consultants on behalf of Woolworths in Case A.

5.3.2.3 Dimension 3: Tactics

The analysis found that, in this case, Woolworths used Expert Consultants to execute information-transmiting Tactics that served the Woolworths’ strategic response to the Information Threat (D3). There were 208 references sourced from Case A GIPA documents which supported the resonance of this dimension with Woolworths’ practices. This Case resonated with four of the five Dimension 3 characteristics (D3-C1, -C2, -C3, -C5). Case A documents do not present evidential references for D3-C4 (‘Firms use Expert Consultants to facilitate industry relationships with key decision makers’).

Case A documents present 17 evidential references supporting D3-C1 (‘Firms use expert consultants to actively address the information threat by producing and suppressing research on the product risks in question’). In his submissions to OLGR (on behalf of Woolworths), Schwartz cited unpublished customer demographic data from a company that is majority-owned by Woolworths, Quantium Market Research [241, p. 2]. Schwartz [241] and Hanson [245, p. 3] refer to this data in support of Woolworths’ claim that the promotion was taken up by demographic groups that are not vulnerable to alcohol risks. As argued by Schwartz:

[The Quantium data…] provides compelling evidence that the Activity is not attractive to young persons (i.e. the data shows only 1.56%5 of persons within the age category 18-25 redeemed the offer). In fact, the data shows the highest proportion of sales were to persons between 39 and 43 years of age [241, p. 2]. (Emphasis in original text).

The collection methods for this data are unclear to the reader; what can be inferred is that the data sample is limited to Woolworths’ customers who are members of Woolworths’ ‘everyday rewards system’.xiii No commentary is provided by Woolworths, Schwarz or Hanson as to

xiii Further information on Woolworths’ Rewards System data collection and use can be found in the Loyalty program assessment: Woolworths Rewards — Woolworths Limited report prepared by the Office of the Australian Information Commissioner [256].

© Copyright by Lisa Margaret Buffinton 2019 | All Rights Reserved 125 Lisa Margaret Buffinton (ANU UID: U4699563) whether or not, or how, their analyses may control for this attribute of the data sample. This opens the possibility of this data sample being skewed in its representation of lower-risk demographic groups.

Case A documents present 163 evidential references supporting D3-C2 (‘Firms use expert consultants to reactively address the information threat by monitoring, reviewing and criticising extant research on the product’s risks’). The lawyer representing Woolworths, Tony Schwartz, insisted that it was necessary to commission the services of expert consultants to review and critique the Jones Report:

It is a significant weakness in the Jones Report that it is not so much what has been said, but rather what has been omitted. This not only establishes the bias of PSJ [… a.k.a. Professor Sandra Jones], but it also does not assist the OLGR in determining the impact of the Activity. It is therefore appropriate that the Jones Report be independently assessed. We confirm Woolworths has instructed two internationally recognised experts' to consider its contents. Their review (including their resumes) accompanies this correspondence in support of our client's response to the Jones Report… Additionally, we have also reviewed and responded to what are considered to be the main reference sources that PSJ has relied on [241, pp. 4-5].

Case A documents present 51 evidential references supporting D3-C3 (‘Firms use Expert Consultants as CPA agents who disseminate the industry’s preferred interpretation of the product’s risks and policy solutions’). The Hanson Report is consistently aligned with Woolworths’ preferred interpretation of their business practice risks in relation to alcohol promotion (as articulated by their lawyer, Tony Schwartz – see Figure 16). For example:

Based on my [… Professor Hanson’s] analysis of the shopper docket receipt promotion, it is my opinion that there is no evidence or reason to believe that this promotion or others like it would increase the risk of engaging in irresponsible, rapid or excessive consumption of alcohol by those who actually redeem the offer [245, p. 5].

Professor Furnham’s report presents a binary political view of the ‘opposing camps’ in alcohol advertising policy: libertarian “Educationalists” and interventionist “Protectionists”. The Furnham Report repeatedly refers to Professor Jones as a Protectionist, and describes Protectionists as individuals or groups who ‘believe that advertising needs strict control through legislation’ [243, p. 13]. Furnham claims that Educationalists, on the other hand, ‘argue that it is both unwise and unethical to ban advertising’ for two reasons:

‘First, young people need education and banning advertisements simply puts back their consumer education, understanding and knowledge. It renders them more naive and unable to understand and effectively deal with the new consumer society. Second, […] Educationalists also

argue that strict voluntary codes that advertisers have to follow are more than sufficient to protect young children from unfair advertising’ [243, p. 14].

This binary perspective is reiterated by Schwartz in his letter to OLGR [243, p. 4]:

Whilst PSJ [… a.k.a. Professor Sandra Jones] was selected by the Office of Liquor, Gaming and Racing (OLGR) as an Independent expert, PSJ is well known as a protectionist, rather than an educationist on alcohol related matters [241, p. 4].

Case A documents present one evidential reference supporting D3-C5 (‘Firms use Expert Consultants as CPA agents retained to troubleshoot public relations (PR) issues in relation to the Information Threat’). As well as his academic publications, Hanson’s CV notes his experience presenting expert testimony to the Indiana State Assembly Interim Study Committee on Alcoholic Beverages, and to the New York State Assembly Standing Committee on Alcoholism and Drug Abuse [246, pp. 11-12]. His CV also highlights his experience in public communications:

Appearances as an alcohol expert on the "NBC Nightly News," the BBC's "The World Tonight," the Dr. Laura television program, CBC's "Daybreak", "CNN Saturday," NPR's "All Things Considered' and "To the Best of Our Knowledge," the Voice of America, Alan Colms' radio program, the ABC radio news and many local radio programs across the U.S. and foreign countries [246, pp. 12].

As shown in these primary source extracts, Woolworths used Expert Consultants to execute information-transmitting Tactics that served the Woolworths’ strategic response to the Information Threat (D3).

5.3.2.4 Dimension 4: Qualities

The analysis found that, in this case, Woolworths used Expert Consultants for their special qualities that make them effective CPA agents who can support the firms’ response to the Information Threat (D4). There were 97 references sourced from Case A GIPA documents which supported the resonance of this dimension with Woolworths Ltd’s practices. This Case resonated with all of five Dimension 4 characteristics (D4-C1, -C2, -C3, -C4, -C5).

Case A documents present two evidential references supporting D4-C1 (‘Firms recruit consultants who are willing to be paid by the firm for CPA services rendered’). The language in the correspondence from Tony Schwartz to OLGR is ambiguous as to whether Furnham and Hanson were paid for their Reports: ‘We have also located and engaged our own independent experts to respond to her [Sandra Jones’] report’ [255, p. 1]. In his 30 April 2013 letter,

Woolworths’ Wilsmore cautions Minister Souris to reflect on the ‘considerable time, energy and expense that has been incurred by our company in dealing with this matter’ [247, p. 2]. One can infer Wilsmore’s comment, and from Schwartz’s comment below, that Woolworths incurred ‘considerable’ expenses in engaging the services of Professor Hanson and Furnham, and in ‘instructing’ them to produce critiques of the Jones Report:

It is […] appropriate that the Jones Report be independently assessed. We confirm Woolworths has instructed two internationally recognised experts [Namely, Professor Adrian Furnham (UK) and Professor David Hanson (USA)] to consider its contents’ [241, p. 4]

These inferences are supported by Professors Furnham and Hanson’s prior experiences of working for the alcoholic beverages industry. Professor Hanson’s CV states plainly that he has served as an ‘Expert witness and alcohol consultant in federal criminal and civil cases (2000 to present)’ [246, p. 14].

Case A documents present 18 evidential references supporting D4-C2 (‘Consultants who can be convincingly presented as a third party, independent scientist or academic’). Both Consultants were professors from universities of well-regarded international standing: University College

London, and the State University of New York.

Professor Hanson’s 13-page CV notes foremost his position as Professor Emeritus of Sociology at the State University of New York [246, p. 2]. His CV lists a ten-page-long ‘select list of publications/presentations’, which include books, ‘chapters & articles reprinted in books’, encyclopaedia articles, and selected journal articles [246, p. 2-13].

Furnham’s three-page CV highlights his background in management and occupational psychology [244, p. 2]. Professor Furnham’s CV also notes that he is ‘Cited as the most productive European Psychologist from the 1990’s; second most productive psychologist in the world, 1985-2005’ [244, p. 2] and lists 71 of his publications. Professor Furnham’s CV also presents him as an academic that is independent of industry influence by obscuring his affiliations with the alcohol industry (i.e. Diageo). These affiliations are buried in the Furnham Report reference list (see Figure 14) and are obscured by replacing Diageo with an ambiguously-titled charitable organisation, the Social Affairs Unit, or ‘SAU’ (see Figure 17) as the publisher of the same or similarly-titled monographs (see Figure 13).

Figure 17: Screenshot from Professor Furnham’s CV [244, p. 30].

Case A documents present six evidential references supporting D4-C3 (‘Firms recruit Consultants whose credibility was bolstered by their affiliations with reputable organisations and institutes’). Both Furnham and Hanson’s CVs detail the consultants’ affiliations with reputable organisations and institutes.

Furnham’s CV lists his affiliations from his education background (NATAL University, London University, Strathclyde University, and Oxford University) and career (London University, Oxford University, Applied behavioural Research Associates, Hong Kong University Business School, Henley Management College, Norwegian School of Management). His CV also highlights his affiliations as: a Chartered Occupational Psychologist; a Chartered Health Psychologist; Fellow of the British Psychological Society; member of the American Psychological Association and the Japanese Psychological Association; the International Society for the Study of Individual Differences; Fellow of the Leadership Trust; and Academician of the Learned Society of the Social Sciences [244, p. 2].

Hanson’s CV lists his affiliations from his education background (Syracuse University, Florida State University) and career in higher education (State University of New York) [246, p. 2]. Hanson’s CV also highlights his affiliations with other reputable organisations and institutes, including:

• The editorial board of the International Journal of Environmental Research and Public Health; • The American Association for the Advancement of Science’s "Science inside Alcoholism" project; • The Baldwin Research Institute; • The American Council on Science and Health; • New York State Sociological Association; • The Conference for Treaty Six First Nations in Alberta, Canada [246, pp. 12-13].

Case A documents present three evidential references supporting D4-C4 (‘Firms sought out individuals who had the skills – or capacity to learn – to act in two capacities: as researchers, and as PR or Government Relations professionals’). As well as his academic publications, Professor Furnham’s CV notes his experience as a ‘writer and broadcaster’, and lists his public communication contributions, including:

Various popular pieces (around 500) in newspapers (Financial Times, Guardian, Daily Telegraph, Daily Mail, Times Higher Educational Supplement, Sunday Times) and magazines (Spectator, Personnel Management, New Scientist, Across the Board, Spotlight) in both Europe and North America. Columnist in various magazines (Mastering Management, Human Resources) and newspapers (FT, Sunday Times, Daily Telegraph). Author of 1000 peer-reviewed scientific papers in international scientific journals [244, p. 2].

As well as his academic publications, Professor Hanson’s CV also notes his experience as an expert witness to legislative inquiries; and his experience in public communications on television and radio. In addition, Professor Hanson’s CV notes that his research has been ‘reported In the New York Times, the Chicago Tribune, the Los Angeles Times, and many other newspapers’ [246, p. 13].

Case A documents present 77 evidential references supporting D4-C5 (‘Firms retained Consultants whose work outputs tend to favour the industry’s policy positions’). Quoting ‘Alcohol and Young Adults’ (authored by Professor Furnham), Schwartz claims that:

The research by Professor Adrian Furnham' on advertising and young persons appears to be a far more robust piece of research, which has been ignored by PSJ [… a.k.a. Professor Sandra Jones]. Professor Furnham specifically looked at the advertising of alcohol and its consequential affects on consumption. His view is that ‘early exposure to any form of advertising is vital to protect young minds against the seductive powers of capitalism. Only if you show your children how the manufacturers are trying to woo them can they build a strong enough immunity to the sales pitch' [241, p. 7].

Citing papers authored by Professor Furnham, the Furnham Report offers the complementary view that “Educationalists” have the following advantages over “Protectionists” in alcohol policy development:

[Educationalists] Emphasise the educative role, of advertising and television and that banning both infantilises and restricts children and adolescent development. [… Educationalists] Demonstrat[e] the self-evident fact that advertising pays for programming of all sorts in entertainment or education. [… Advertising] bans backfire and have often the opposite effect that they are supposed to have. [… Educationalists] emphasis[e] that banning subverts the family and nationalises children attempting to take away the rights of parents. (Furnham, 2003,2009) [243, p. 15]. (Emphasis in the original text).

The distinctions between ‘the opposing camps’ of libertarian “Educators” versus interventionist “Legislators” was mapped in the Furnham Report (see Figure 18). This view casts a positive light on the research integrity of the Educators camp in labelling ‘empiricist’ research as ‘crucial’, as opposed to the Legislators’ camp where Furnham labels their post-empiricist research as ‘optional’.

Figure 18: Screenshot of schema in Furnham's Report.

Schwartz highlights that the Consultants’ work outputs favour Woolworths’ policy positions in summarising their reports in his letter to OLGR:

Professor Furnham states that "advertising appears to have a very weak positive influence on consumption and no impact on experimentation with alcohol or abuse of it. Moreover, there is no evidence that changes in regulations regarding permissible advertising that either increase

or decrease it affect consumption patterns” […]. Professor Furnham argued that as a policy matter there is a case for counter-advertising which is effective on teenagers and young adults (relying on a study by Atkin (1993)). Accordingly, he thought that increased counter-advertising rather than new advertising bans appear to be a better choice of public policy [241, pp. 7-8].

While Sandra Jones was selected by NSW OLGR as an ‘independent expert’, Woolworths (in their lawyers’ submission) presented her as being ’well known as a protectionist, rather than an educationist' on alcohol related matters’ [241, p. 4]. A footnote in their lawyers’ submission goes on to explain that:

The educationist is person who educates others on, for example, on the effects of drinking alcohol irresponsibly, whilst a protectionist is a person who seeks to shield a person from anything to do with alcohol. The protectionist wants us to believe that drinking at an early age causes alcohol problems later in life, whilst an educationist attempts to equip the person with the right tools to make informed and responsible decisions in the future [241, p. 4].

5.4 Case B: Licence application in Parkes, NSW

This concerns research investigating the relationship between liquor licence concentrations and assault rates in Local Government Areas (LGAs) in the state of Victoria, Australia. The research undertaken by Chris Morrison (Monash University, Victoria) and Associate Professor Karen Smith (Ambulance Victoria), with funding from the Foundation for Alcohol Research and Education (FARE.)xiv This research was raised with Woolworths by the NSW Independent Liquor and Gaming Authority (ILGA) in relation to a liquor licensing matter in Parkes, NSW, in which Woolworths was the applicant. The sections below discuss the context of this case and its resonance with the Taxonomy.

5.4.1 Context

In May 2015, FARE published Disaggregating relationships between off-premise alcohol outlets and trauma (the FARE Study) authored by Morrison and Smith. The FARE Study examined the disaggregated associations between alcohol sold from different classes of liquor store and the incidence of intentional and unintentional traumatic injuries in surrounding areas (according to ambulance attendance data). The FARE Study has four key findings:

xiv FARE is an independent, charitable not-for-profit public health organisation based in Canberra, Australia.

• Larger liquor outlets and chains sold cheaper alcohol than their independent counterparts. This relationship could not be explained by land and structure rents or other alcohol market features. • Intentional and unintentional traumatic injuries occurred more commonly in areas with greater concentrations of off-premise alcohol outlets. • Chain outlets contributed most substantially to this trauma risk: each additional chain outlet was associated with a 35.3 per cent increase in intentional injuries, and a 22 per cent increase in unintentional injuries in the local area. • Harms related to cheap alcohol disproportionately affected disadvantaged people as cheaper outlets – including retail liquor outlet chains – were located in disadvantaged areas.

Articles based on Morrison and Smith’s original research in the FARE Study were peer-reviewed and published in Drug and Alcohol Review (the official journal of the Australasian Professional Society on Alcohol and other Drugs) and Addiction (the official international journal of the Society for the Study of Addiction) [257; 258; 259; 260].

On 11 June 2015, the FARE Study was raised with Woolworths by the NSW Independent Liquor and Gaming Authority (ILGA) regarding a licence application by Woolworths in Parkes, NSW. Woolworths subsequently commissioned the services of a consultant statistician, Dr John Henstridge, to conduct a review of the FARE study [261]. At the time, Dr Henstridge was the managing director of Data Analysis Australia Pty Ltd (DAA) [262].xv Dr Henstridge was assisted by two consultant statisticians from DAA – Donna Hill and Yuichi Yano.

Dr Henstridge and colleagues conducted their own statistical analysis of the FARE Study data to determine their own assessment of the association between outlet density and alcohol harms. Dr Henstridge and colleagues accessed the FARE Study data for this Parkes, NSW, matter through a simultaneous regulatory matter in another jurisdiction: a liquor license application by Woolworths in the state of Victoria [263]. In the Victorian Woolworths matter, the Victorian Commission for Gaming and Liquor (VCGLR) issued a summons to Ambulance Victoria on 3 July 2015 for submission of the FARE Study data sets to VCGLR [263, p. 8]. The data was requested to inform the Victorian hearings concerning Woolworths’ application for

xv DAA is an a Perth-based information consultancy in the state of Western Australia.

© Copyright by Lisa Margaret Buffinton 2019 | All Rights Reserved 133 Lisa Margaret Buffinton (ANU UID: U4699563) a licence to operate a Dan Murphy’s (a large off-premises liquor store chain) in the City of Casey, Victoria. Dr Henstridge and colleagues produced and submitted to VCGLR a review of the FARE Study, Review of Research Paper on Disaggregating Relationship between Off-premise Alcohol Outlets and Trauma, Project: Woolworths/23, August 2015 (the DAA-FARE Review) [261; 263, p. 9]. This same DAA-FARE Review (that was submitted to VCGLR in relation to the Victorian ‘Cranbourne East’ City of Casey licencing matter) was shared with Woolworths’ lawyer in NSW, Tony Schwartz of BSV. Schwartz then submitted the same DAA-FARE Report to ILGA on 24 August 2015 in support of their ‘client’s submission that the FARE Report should carry no weight in the assessment process of this [… Parkes, NSW licence] Application for all the reasons outlined in Dr Henstridge’s Report’ [264, p. 1]. In October 2015, copies of the DAA-BOCSAR review and its attachments were provided to FARE in response to a request for the documents under the GIPA Act 2009 (NSW).

In this case, the NSW regulatory authority agreed with the conclusions in the FARE Study by Chris Morrison and Karen Smith; the regulatory did not concur with Henstridge’s conclusions that a relationship between the density of liquor outlets and alcohol harms could not be proven. However, in Victoria, the regulatory sided with the conclusions of Henstridge in their determination of the licensing matter in the City of Casey [263]. This suggests that the influence of information transmitted by industrial consultants may differ depending on individual cases, regulatory authorities and the regulatory norms and preferences of a jurisdiction. Regulator consideration of original research transmitted by Morrison, Smith and FARE, and consultant critiques of this report transmitted by John Henstridge via Woolworths’ lawyer, Tony Schwartz, are outlined in Appendix 8.2 of this thesis.

5.4.2 Case B resonance with taxonomy

Analysis of Case B documents resulted in 90 highlighted sections of text that were coded against the Taxonomy characteristics. As shown in Table 10, the Case B documents resonated with all four dimensions of the Taxonomy, and 78 per cent (n=18) of Taxonomy characteristics. Case B documents resonated with all characteristics of Dimension 4 (‘Qualities of Industry CPA Consultants’). While Case B documents resonated with most characteristics in Dimensions 1 (‘Industry rationales for using CPA consultants’), 2 (‘Strategic approaches to using CPA consultants’) and 3 (‘Tactical activities of Industry CPA Consultants’), these documents did not resonate with five Taxonomy characteristics. These are:

• D1-C2. The growing threat of litigation (in light of growing academic research base on product risks) as a rationale for using CPA Consultants. • D1-C3. Depreciating public image and regulatory alliances of the firm or industry as a rationale for using CPA Consultants. • D2-C5. The strategic use of CPA Consultants to subvert scientific processes. • D2-C7. Collaboration with competitors as a strategic approach to funding and implementing Consultancy Programmes. • D3-C4. The tactical use of CPA Consultants to facilitate industry relationships with decision-makers.

As shown in Figure 19, the characteristic with the most coded sections (n=37) from the Case B documents is the strategic use of CPA consultants to neutralise the influence of policy adversaries (D2-C2). This is followed by strategic use of CPA Consultants to enhance the credibility of the sponsor industry (D2-C4) and the tactical use of CPA Consultants to monitor, review or criticise extant research on product risks (D3-C2), with 30 and 20 coded sections of text respectively.

Table 10: Count and proportion of highlighted sections of text from Case B documents that were coded against the 23 characteristics of the Taxonomy.

TAXONOMY DIMENSION (Dn); CHARACTERISTIC (Dn-Cn) Case B Case B (n) (/90) D1. Industry rationales for using CPA Consultants 5 6% D1-C1. Growing academic research base on product risks 1 1% D1-C2. Growing threat of litigation in light of C1 0 0% D1-C3. Depreciating public image and regulatory alliances in light of C1 and C2 0 0% D1-C4. Building regulatory pressure in light of C1-C3 2 2% D1-C5. Market performance under threat from C1-C4 2 2% D2. Strategic approaches to using CPA Consultants 41 46% D2-C1. Resist and delay product restrictions in given jurisdiction 1 1% D2-C2. Neutralise influence of policy adversaries 37 41% D2-C3. Enhance credibility of sponsor industry 3 3% D2-C4. Generate uncertainty in product risk discourse 30 33% D2-C5. Subvert scientific process 0 0% D2-C6. Use lawyers to coordinate Consultancy Programmes 2 2% D2-C7. Collaborate with competitors to fund and implement Consultancy Programmes 0 0% D2-C8. Recycle Consultancy Programmes in numerous jurisdictions 3 3% D3. Tactical activities of Industry CPA Consultants 22 24% D3-C1. Produce and suppress research on product risks 2 2% D3-C2. Monitor, Review or Criticise extant research on product risks 20 22% D3-C3. Disseminate industry interpretation of risks 1 1% D3-C4. Facilitate industry relationships with decision-makers 0 0% D3-C5. Troubleshoot PR issues facing the sponsor industry 3 3% D4. Qualities of Industry CPA Consultants 22 24% D4-C1. Paid by the industry for services 6 7% D4-C2. 3rd party independent scientist or academic 7 8%

TAXONOMY DIMENSION (Dn); CHARACTERISTIC (Dn-Cn) Case B Case B (n) (/90) D4-C3. Affiliated with reputable organisations and institutes 15 17% D4-C4. Serve as both researchers and as PR or Gov't relations professionals 2 2% D4-C5. Work outputs favour industry policy position 1 1% Totals 90 100%

Figure 19: Ranking (in descending order) of the taxonomy characteristics by the count of highlighted sections of text from Case B documents that were coded against the 23 taxonomy characteristics.

Order of Case B resonant characteristics by number of References per characteristic

D2-C2 37 D2-C4 30 D3-C2 20 D4-C3 15 D4-C2 7 D4-C1 6 D3-C5 3 D2-C8 3 D2-C3 3 D4-C4 2 D3-C1 2 D2-C6 2 D1-C5 2 D1-C4 2 D4-C5 1 D3-C3 1 D2-C1 1 D1-C1 1 D3-C4 0 D2-C7 0 D2-C5 0 D1-C3 0 D1-C2 0

0 5 10 15 20 25 30 35 40

Case B (n)

5.4.2.1 Dimension 1: Rationale

The analysis found that, in this case, Woolworths used Expert Consultants to address a unique information-based business threat. The threat takes the form of technical and scientific information finding that increasing the density of alcohol outlets in a geographic area is associated with increasing rates of risky alcohol consumption by the local population. This Case resonated with three of the five Dimension 1 characteristics (D1-C1, -C4, -C5). Case B documents did not present evidential references for D1-C2 (‘Firms face litigation supported by information associating their products and practices with health risks’); nor for D1-C3 (‘The

Information Threat’s credibility weakens the firm’s credibility, adversely affecting its public image and alliances’).

Case B documents present one evidential reference supporting D1-C1 (‘credible information associating the firm’s product and practices with health risks is growing, and its influence has the potential to ‘spill over’ beyond academic domains’).

I have been asked by Woolworths Limited to provide an expert statistical review of the paper Disaggregating relationships between off-premise alcohol outlets and trauma authored by Christopher Morrison and Karen Smith and published by the Foundation for Alcohol Research and Education, Canberra [261, p. 1].

Case B documents present two evidential references supporting D1-C4 (‘The Information Threat generates a stronger imperative for regulators to restrict marketing of the risky product’).

Following the statistical analysis the [Morrison and Smith] Paper draws several conclusions and makes certain recommendations, in particular that the findings "support reducing off-premise outlet density, particularly chain outlet density, as a strategy to reduce trauma and improve the public's health" [261, p. 3].

Case B documents present two evidential references supporting D1-C5 (‘The Information Threat’s non-market influence (in terms of litigation, public image and regulation) adversely affects the firm’s market performance’). The concern is about Woolworths being unfairly disadvantaged by the Morrison and Smith Report’s findings. Henstridge alleges that Morrison and Smith treated some of Woolworths’ competitors (namely, ‘Cellarbrations’ and ‘Aldi’) differently; and that, consequently, this may have compromised the results of the research:

It is possible that ALDI stores were systematically treated differently, although the Paper is silent on this [… This treatment of ALDI store data points] led to an error in the spatial analysis. […] Given that a major theme of the Paper is the possible effect of liquor chains, it is surprising that the definition of chains is so imprecise and apparently in error [261, p. 8].

5.4.2.2 Dimension 2: Strategy

The analysis found that, in this case, Woolworths adopted special Approaches to using Expert Consultants as CPA agents challenging the Information Threat (D2). There were 41 references sourced from Case B GIPA documents which supported the resonance of this dimension with Woolworths Ltd’s practices. This Case resonated with six of the eight Dimension 2 characteristics (D2-C1, -C2, -C4, -C5, -C6, -C8). Case B documents did not present evidential references for D2-C3 (‘Firms use Expert Consultants to subvert scientific processes’); nor for D2-

C7 (‘Firms collaborate with their competitors to operate Consultant Programs in response to mutual Information Threats faced by the industry at large’).

Case B documents present one evidential reference supporting D2-C1 (‘Firms use Expert Consultants to resist and delay restrictions on the marketability of the risky product’). For example, Schwartz argues that: ‘It is our client's submission that the FARE Report should carry no weight in the assessment process of this Application for all the reasons outlined in Dr. Henstridge's Report’ [264, p. 1].

Case B documents present 30 evidential references supporting D2-C2 (‘Firms use Expert Consultants to generate uncertainty in the product risk discourse’). Henstridge’s report generated uncertainty in four ways. First, by questioning the quality of research:

Overall the analysis of the injury data and the attempt to use it to determine whether or not chains and independent stores have different effects fails at a number of levels, with sample size that is too small, poor data quality, a problematic model and a failure to carry out a proper statistical test for the key question [261, p. 15].

The discussion in the Paper of the results of the analysis is rendered moot by the numerous errors in the analysis. The conclusions that chain outlets have a greater effect on numbers of injuries than independent outlets do, cannot be reliably drawn from the analysis presented [261, p. 15].

Second, by questioning evidence of association between product and risk:

It is appropriate to caution at this stage that the statistical analysis, even if carried out correctly, can at best prove the existence of association between outlets and injuries. Proving causation is more difficult since it would have to rule out alternative explanations of the association [261, p. 15].

Third, by selectively quoting other experts:xvi

It is appropriate to point out that some researchers question the efficacy of all area based outlet density studies. A recent review by Gmel, Holmes and Studer (2015)1 highlighted the many methodological issues of such studies. I believe this illustrates concerns that such studies require substantial effort and rarely give definitive findings. I believe that the Paper is a good illustration of the difficulties in "getting it right" [261, p. 15].

xvi Gmel C. Holmes J.,Studer I. (2015) Are alcohol outlet densities strongly associated with alcohol-related outcomes? A critical review of recent evidence. Drug and Alcohol Review, WM 10.111 lidar.12304.

Fourth, by claiming that Smith and Morrison manipulated the science to fulfil a political agenda that unfairly targets Woolworths when Henstridge declared that ‘the most critical problems

[sic] with the data’ concern the ‘exclusion of ALDI’ (one of Woolworths’ competitors) [261, p. 14].

Case B documents present 37 evidential references supporting D2-C4 (‘Expert Consultants are used to neutralise the policy influence of the Information Threat’s proponents’). For example,

Henstridge’s CV highlights his effectiveness in this activity:

As part of the evaluation of evidence in a legal matter, John reviewed a large body of work relating the density of liquor outlets and possible associated harm. This review highlighted surprising shortcomings in much of this evidence, largely due to poor analysis of admittedly difficult data. The review, conducted to the highest legal standards, has led to licensing authorities placing less weight on such evidence [262, p. 3].

Case B documents present three evidential references supporting D2-C5 (‘Firms use Expert Consultants to enhance the credibility of the firm’s policy position in relation to the health risks of its products, and regulatory responses to those risks’). For example, Schwartz contends that ‘The reasons as to why no weight should be given to the [Morrison and Smith] Paper […] are self- evident from the commentary and issues raised in Dr Henstridge's Report’ [264, p. 1].

Case B documents present two evidential references supporting D2-C6 (‘Firms also use external lawyers to coordinate their “Consultant Programs”’). While Woolworths’ lawyer, Tony Schwartz of BSV, provided Henstridge’s report to ILGA [264], Henstridge’s CV suggests that consultancy services he has provided in the past for regulatory proceedings were coordinated by legal teams:

John [Henstridge] also provides advice to legal teams and appears as an expert witness in court cases, a sign of his highly regarded qualifications and expertise [262, p. 1].

Case B documents present three evidential references supporting D2-C8 (‘Firms also recycle Consultant Programs in numerous jurisdictions to pre-empt or respond to the Information Threat gaining influence in other markets’). As noted in the 24 August 2015 e-mail from Tony Schwartz to ILGA, they had commissioned an external consultant (John Henstridge) to prepare a review of the Morrison and Smith Report. It is apparent that the commissioning of this review caused a considerable delay in the decision-making on this regulatory matter. Tony Schwartz claimed in his e-mail that this delay was due to ‘The data upon which the FARE [Morrison and Smith] report relies was subpoenaed and finally released which permitted Dr Henstridge to complete his

review’ [264, p. 1]. What is not mentioned in neither this correspondence, nor in the report, is that this data was acquired through a regulatory matter in another jurisdiction (Victoria).xvii

5.4.2.3 Dimension 3: Tactics

The analysis found that, in this case, Woolworths used Expert Consultants to execute information-transmitting Tactics that served the Woolworths Ltd’s strategic response to the Information Threat (D3). There were 22 references sourced from Case B GIPA documents which supported the resonance of this dimension with Woolworths Ltd’s practices. This Case resonated with three of the five Dimension 3 characteristics (D3-C2, -C3, -C5). Case B documents do not present evidential references for D3-C1 (‘Firms use expert consultants to actively address the information threat by producing and suppressing research on the product risks in question’); nor for D3-C4 (‘Firms use Expert Consultants to facilitate industry relationships with key decision makers’).

Case B documents present 20 evidential references supporting D3-C2 (‘Firms use expert consultants to reactively address the information threat by monitoring, reviewing and criticising extant research on the product’s risks’). As noted in the 24 August 2015 e-mail from Tony Schwartz to ILGA, they had commissioned an external consultant (John Henstridge) to prepare a review of the Morrison and Smith Report. It is apparent that the commissioning of this review caused a considerable delay in the decision-making on this regulatory matter. Tony Schwartz claimed in his e-mail that this delay was due to ‘The data upon which the FARE [Morrison and Smith] report relies was subpoenaed and finally released which permitted Dr Henstridge to complete his review’ [264]. What is not mentioned in this letter is that this data was sub poena’d in another jurisdiction (Victoria) concerning a separate licensing matter which Woolworths was involved in.

Case B documents present one evidential reference supporting D3-C3 (‘Firms use Expert Consultants as CPA agents who disseminate the industry’s preferred interpretation of the product’s risks and policy solutions’). E-mail from Schwartz to ILGA (24 August 2015):

The reasons as to why no weight should be given to the [… Morrison and Smith Report] are self-evident from the commentary and issues raised in Dr Henstridge's Report […] It is our client's submission that the [… Morrison and Smith] Report should carry no weight in the

xviihttp://assets.justice.vic.gov.au/vcglr/resources/5d8158d3-d29d-4602-81a3- d73be3e19fe0/dan+murphy%27s+cranbourne+east+-+decision+and+reasons.pdf

assessment process of this Application for all the reasons outlined in Dr. Henstridge's Report [264, p. 1].

Case B documents present three evidential references supporting D3-C5 (‘Firms use Expert Consultants as CPA agents retained to troubleshoot public relations (PR) issues in relation to the Information Threat’). CV:

Survey evidence has become accepted as necessary evidence in many liquor licensing applications to demonstrate need or to assess the impact on the public. […] Since 1996 John has led the development of survey approaches that solved these problems for over 50 such licensing matters [262, p. 3].

5.4.2.4 Dimension 4: Qualities

The analysis found that, in this case, Woolworths Ltd used Expert Consultants for their special qualities that make them effective CPA agents who can support the firms’ response to the Information Threat (D4). There were 22 references sourced from Case B GIPA documents which supported the resonance of this dimension with Woolworths Ltd’s practices. There are five characteristics of Expert Consultants recruited by firms for CPA purposes. This Case resonated with all of these characteristics (D4-C1, -C2, -C3, -C4, -C5).

Case B documents present six evidential references supporting D4-C1 (‘Firms recruit consultants who are willing to be paid by the firm for CPA services rendered’). John Henstridge’s

CV indicates that he has worked with the industry since 1996 for over 50 licensing matters [262, p. 3].

Case B documents present seven evidential references supporting D4-C2 (‘Consultants who can be convincingly presented as a third party, independent scientist or academic’). Henstridge’s CV outlines experience in producing work for various public and private sector clients in survey development, ‘advanced statistical analysis’, ‘forecasting through structural models’,

‘mathematical advice’ on ‘efficient algorithm development’, and ‘software expertise’ [262, pp. 2-

5]. His position as Adjunct Professor of Statistics, School of Mathematics and Statistics, UWA, is also highlighted in the Report and the CV [261, p. 2]. Henstridge declares that:

I provide this evidence in my capacity as an experienced statistician […] I consider that I have specialist knowledge in relation to the subject matter of this report sufficient to enable me to provide an expert opinion on the matters set out in this report’ [261, pp. 2-3].

Case B documents present 15 evidential references supporting D4-C3 (‘Firms recruit Consultants whose credibility was bolstered by their affiliations with reputable organisations and

© Copyright by Lisa Margaret Buffinton 2019 | All Rights Reserved 141 Lisa Margaret Buffinton (ANU UID: U4699563) institutes’). Henstridge’s CV and report lists his affiliations with the following reputable organisations in relation to his:

• Education from Flinders University and Australian National University; • Accreditations from the Royal Statistical Society, Statistical Society of Australia and Australian Market and Social Research Society; • Memberships of professional organisations, including: Australian Mathematical Society; International Association for Statistical Computing; Australian Society for Operations Research; Australian Society for Operations Research; American Statistical Association; Geostatistical Association of Australasia; Australian and New Zealand Society of Criminology; Society for Industrial and Applied Mathematics; Australian Institute of Management [262, p. 1]; and • Past and current leadership of organisations, including: Statistical Society of Australia; Geostatistical Association of Australasia; and Western Australian Branch of the Statistical Society of Australia; Accreditation Committee of the Statistical Society of Australia; Data Analysis Australia (a consulting company); Siromath (a consulting company); teaching and adjunct professorship at the School of Mathematics and Statistics, University of Western Australia [261, pp. 1-2].

Henstridge’s CV also highlights his prior experience working for public sector clients, including: WA Department for Planning and Infrastructure; Bureau of Tourism Research, Australian Standing Committee on Tourism, Northern Territory Tourism Commission; the Federal Department of Family and Community Services; Western Australian Ministry of Housing; EnergySafety WA Department of the Attorney General, South Australian Court Services; and Department of Health Western Australia. His CV also highlights his prior experience working for private sector clients, including: Western Power, Water Corporation, Argyle Diamond, Anaconda Nickel, BHP Billiton, Rio Tinto Iron, Iluka, and MMG, Synergy, and Horizon Power [262, pp. 4-5];

Case B documents present two evidential references supporting D4-C4 (‘Firms sought out individuals who had the skills – or capacity to learn – to act in two capacities: as researchers, and as PR or Government Relations professionals’). For example:

John [Henstridge] also provides advice to legal teams and appears as an expert witness in court cases, a sign of his highly regarded qualifications and expertise [262, p. 1].

Case B documents present one evidential reference supporting D4-C5 (‘Firms retained Consultants whose work outputs tend to favour the industry’s policy positions’). John Henstridge was unable to reproduce the ‘hierarchical Bayesian spatial models’ used in the Morrison and Smith Report’s analysis. DAA chose instead to base their Review on their own ‘simpler modelling that informs my [Henstridge’s] discussion’ [261, p. 11]. Apparently this ‘simpler’ Review approach underpins DAA’s two conclusions that:

• ‘Overall the analysis […] fails at a number of levels, with sample size that is too small, poor data quality, a problematic model and a failure to carry out a proper statistical test for the key question’ [261, p. 15]. • ‘These failings unfortunately mean that the results of the analysis in the Paper cannot be considered reliable and thus the conclusions of the Paper should be disregarded to the extent that they depend upon the analysis presented’ [261, p. i].

5.5 Case C: Licence application in Minto, Petersham and Haymarket, NSW

This case concerns research investigating the relationship between liquor licence concentrations and assault rates in Local Government Areas (LGAs) in NSW. The research report was produced by the New South Wales (NSW) Bureau of Crime Statistics and Research (BOCSAR) [265].xviii This research was raised with Woolworths by the NSW Independent Liquor and Gaming Authority (ILGA) in relation to three licensing matters in which Woolworths was the applicant. The sections below discuss the context of this case and its resonance with the Taxonomy.

5.5.1 Context

In December 2014, BOCSAR published The effect of liquor licence concentrations in local areas on rates of assault in New South Wales (the BOCSAR Study). The authors of the study conducted spatial regression analyses of policing, liquor licensing and socio-demographic data to measure associations between the concentrations of different liquor outlets and rates of domestic violence (DV) and non-domestic violence (non-DV) assaults. The types of liquor

xviii Established in 1969, BOCSAR is a statistical and research agency within the NSW Department of Attorney General and Justice. BOCSAR assists criminal justice policy makers and administrators to ‘develop and implement strategies which reduce crime, and provide a more efficient, effective and equitable justice system’ [266].

© Copyright by Lisa Margaret Buffinton 2019 | All Rights Reserved 143 Lisa Margaret Buffinton (ANU UID: U4699563) outlets included hotel, club and On-premises licences (which permit the sale of alcohol to be consumed at the licensed venue, or “On-Premises”) and Packaged Liquor licences (which permit the sale of alcohol to be consumed off the licenced premises, or “Off-Premises”). The BOCSAR Study had four key findings associating the incidence of alcohol harms with the concentration or density of licensed liquor outlets in a LGA:

The concentration of hotel licences in a LGA, particularly at higher density levels, was strongly predictive of both DV and non-DV assault rates. A similar, but slightly weaker, association was found for the concentration of packaged licences and DV and non-DV assault rates. On- premises concentrations also predicted DV and non-DV assault rates at the LGA level but, unlike hotel concentration effects, in this case there was no evidence of stronger effects at higher density levels. A significant relationship between DV assault rates and the concentration of clubs was also found, but the association between the concentration of clubs and the non-DV assault rate was not as strong [265].

The BOCSAR Study concluded that, particularly for hotel and packaged liquor outlets, ‘[There] are certain thresholds above which increases in particular licence types […] will have a substantial impact on assaults (both DV and non-DV assaults)’ [265, p. 11]. The authors underscored this conclusion with the finding that ‘the form of this relationship will remain’ despite variations in the magnitude of the effects across LGAs with different distributions of age and socioeconomic disadvantage [265, p. 11]. In light of these findings, the BOCSAR Study concluded that outlet density should be a concern among liquor regulators.

5.5.1.1 Industry Response

This research was raised with Woolworths by ILGA regarding three licensing matters in which Woolworths was the applicant. These included:

• An application for new packaged liquor (off-premises) licences for two Beer Wine Spirits (BWS)-branded stores in Minto and Petersham (suburbs in Sydney, NSW); and • The removal of a packaged liquor licence from Pyrmont, NSW, to a new BWS-branded store in Haymarket (also a suburb in Sydney, NSW) [267].

Woolworths’ licence applications for Minto, Petersham and Haymarket were deferred by ILGA in March 2015 ‘for the purpose of [Woolworths] being given an opportunity to address the matters raised in [… the BOCSAR study]’ [268]. Woolworths’ lawyers, BSV, subsequently commissioned the services of ‘an expert independent statistician’ to conduct a review of the BOCSAR study [267]. This expert was Dr John Henstridge of DAA – the same consultant

© Copyright by Lisa Margaret Buffinton 2019 | All Rights Reserved 144 Lisa Margaret Buffinton (ANU UID: U4699563) statistician involved in Case B. Dr Henstridge was assisted by two consultant statisticians from DAA – Donna Hill and Philip Vlakovsky [269].

Dr Henstridge and colleagues conducted their own statistical analysis of the BOCSAR data to determine their own assessment of the association between outlet density and alcohol harms. Woolworths’ lawyers submitted Dr Henstridge’s report (the DAA-BOCSAR Review) to ILGA in June 2015 in support of their argument that:

Due to the findings in Dr Henstridge’s Report, it is obvious the BOCSAR Report should have no adverse bearing on the decision making [sic] process on the liquor applications by Woolworths at Petersham, Haymarket or Minto. As our client has experienced substantial expense and delay in putting this significant independent evidence before [ILGA], we ask that the 3 liquor applications in question be dealt with as soon as possible [267].

In October 2015, copies of the DAA-BOCSAR review and its attachments were provided to FARE in response to a request for the documents under the GIPA Act 2009 (NSW).

In this case, the regulatory authority agreed with the conclusions in the FBOCSAR Study; the regulator did not concur with Henstridge’s conclusions that a relationship between the density of liquor outlets and domestic violence rates could not be proven. Regulator consideration of original research transmitted by BOCSAR, and consultant critiques of this report transmitted by John Henstridge via Woolworths’ lawyer, Tony Schwartz, are outlined in Appendix 8.2 of this thesis.

5.5.2 Case C resonance with taxonomy

Analysis of Case C documents resulted in 53 highlighted sections of text that were coded against the Taxonomy characteristics. As shown in Table 11, the Case C documents resonated with all four dimensions of the Taxonomy, and 74 per cent (n=17) of Taxonomy characteristics. Case C documents resonated with all characteristics of Dimension 4 (‘Qualities of Industry CPA Consultants’). While Case C documents resonated with most characteristics in Dimensions 1 (‘Industry rationales for using CPA consultants’), 2 (‘Strategic approaches to using CPA consultants’) and 3 (‘Tactical activities of Industry CPA Consultants’), these documents did not resonate with five Taxonomy characteristics. These are:

• D1-C2. The growing threat of litigation (in light of growing academic research base on product risks) as a rationale for using CPA Consultants.

• D1-C3. Depreciating public image and regulatory alliances of the firm or industry as a rationale for using CPA Consultants. • D2-C5. The strategic use of CPA Consultants to subvert scientific processes. • D2-C7. Collaboration with competitors as a strategic approach to funding and implementing Consultancy Programmes. • D3-C4. The tactical use of CPA Consultants to facilitate industry relationships with decision-makers.

As shown in Figure 20, the two characteristics with the most coded sections (n=22 respectively) from the Case C documents are: the strategic use of CPA consultants to neutralise the influence of policy adversaries (D2-C2), and the strategic use of CPA Consultants to enhance the credibility of the sponsor industry (D2-C4). This is followed by the tactical use of CPA Consultants to monitor, review or criticise extant research on product risks (D3-C2), with 10 coded sections of text.

Table 11: Count and proportion of highlighted sections of text from Case C documents that were coded against the 23 characteristics of the Taxonomy.

TAXONOMY DIMENSION (Dn); CHARACTERISTIC (Dn-Cn) Case C Case C (n) (/53) D1. Industry rationales for using CPA Consultants 3 6% D1-C1. Growing academic research base on product risks 1 2% D1-C2. Growing threat of litigation in light of C1 0 0% D1-C3. Depreciating public image and regulatory alliances in light of C1 and C2 0 0% D1-C4. Building regulatory pressure in light of C1-C3 1 2% D1-C5. Market performance under threat from C1-C4 2 4% D2. Strategic approaches to using CPA Consultants 26 49% D2-C1. Resist and delay product restrictions in given jurisdiction 3 6% D2-C2. Neutralise influence of policy adversaries 22 42% D2-C3. Enhance credibility of sponsor industry 3 6% D2-C4. Generate uncertainty in product risk discourse 22 42% D2-C5. Subvert scientific process 0 0% D2-C6. Use lawyers to coordinate Consultancy Programmes 2 4% D2-C7. Collaborate with competitors to fund and implement Consultancy Programmes 0 0% D2-C8. Recycle Consultancy Programmes in numerous jurisdictions 2 4% D3. Tactical activities of Industry CPA Consultants 11 21% D3-C1. Produce and suppress research on product risks 6 11% D3-C2. Monitor, Review or Criticise extant research on product risks 10 19% D3-C3. Disseminate industry interpretation of risks 0 0% D3-C4. Facilitate industry relationships with decision-makers 0 0% D3-C5. Troubleshoot PR issues facing the sponsor industry 1 2% D4. Qualities of Industry CPA Consultants 13 25% D4-C1. Paid by the industry for services 3 6% D4-C2. 3rd party independent scientist or academic 5 9% D4-C3. Affiliated with reputable organisations and institutes 1 2% D4-C4. Serve as both researchers and as PR or Gov't relations professionals 1 2% D4-C5. Work outputs favour industry policy position 6 11%

Totals 53 100%

Figure 20: Ranking (in descending order) of the taxonomy characteristics by the count of highlighted sections of text from Case C documents that were coded against the 23 taxonomy characteristics.

Order of Case C resonant characteristics by number of References per characteristic

D2-C4 22 D2-C2 22 D3-C2 10 D4-C5 6 D3-C1 6 D4-C2 5 D4-C1 3 D2-C3 3 D2-C1 3 D2-C8 2 D2-C6 2 D1-C5 2 D4-C4 1 D4-C3 1 D3-C5 1 D1-C4 1 D1-C1 1 D3-C3 1 D3-C4 0 D2-C7 0 D2-C5 0 D1-C3 0 D1-C2 0

0 5 10 15 20 25

Case C (n)

5.5.2.1 Dimension 1: Rationale

The analysis found that, in this case, Woolworths used Expert Consultants to address a unique information-based business threat. The threat takes the form of technical and scientific information finding that increasing the density of alcohol outlets in a geographic area is associated with increasing rates of risky alcohol consumption by the local population. There were three references sourced from Case C GIPA documents which supported the resonance of this dimension with Woolworths Ltd’s practices. There are five characteristics of firms’ drivers for using Expert Consultants to address this threat. This Case resonated with three of the five Dimension 1 characteristics (D1-C1, -C4, -C5). Case C documents does not present evidential references for D1-C2 (‘Firms face litigation supported by information associating their products

© Copyright by Lisa Margaret Buffinton 2019 | All Rights Reserved 147 Lisa Margaret Buffinton (ANU UID: U4699563) and practices with health risks’); nor for D1-C3 (‘The Information Threat’s credibility weakens the firm’s credibility, adversely affecting its public image and alliances’).

Case C documents present one evidential reference supporting D1-C1 (‘credible information associating the firm’s product and practices with health risks is growing, and its influence has the potential to ‘spill over’ beyond academic domains’). E-mail from Tony Schwartz of BSV on 2 June 2015 to ILGA:

I refer to the email from Stephanie Salviejo to this firm of the 31 March 2015 [… which] indicated [… Woolworths’ liquor licence] applications were deferred for the purpose of [… Woolworths] being given an opportunity to address the matters raised in the BOCSAR report "The effect of liquor licence concentrations in local areas on rates of assault in NSW-published in December 2014 [267, p. 1].

Case C documents present one evidential reference supporting D1-C4 (‘The Information Threat generates a stronger imperative for regulators to restrict marketing of the risky product’). Henstridge highlights the following section of the original report as ‘A notable finding’:

"there are certain thresholds above which increases in particular licence types, especially hotels and packaged liquor outlets, will have a substantial impact on assaults (both DV [domestic violence] and non-DV assaults). […] Our work suggests that new hotel licences in areas where the concentration of hotels is already above two per 1,000 residents should be of particular concern to regulatory authorities." [269, p. 3].

Case C documents present two evidential references supporting D1-C5 (‘The Information Threat’s non-market influence (in terms of litigation, public image and regulation) adversely affects the firm’s market performance’).

As our client has experienced substantial expense and delay in putting this significant independent evidence before the IL&GA, we ask that the 3 liquor applications in question be dealt with as soon as possible [267].

5.5.2.2 Dimension 2: Strategy

The analysis found that, in this case, Woolworths adopted special Approaches to using Expert Consultants as CPA agents challenging the Information Threat (D2). There were 26 references sourced from Case C GIPA documents that supported the resonance of this dimension with Woolworths Ltd’s practices. There are eight characteristics of firms’ strategic use of Expert Consultants for CPA purposes. This Case resonated with six of these characteristics (D2-C1, - C2, -C4, -C5, -C6). Case C documents does not present evidential references for D2-C3 (‘Firms use Expert Consultants to subvert scientific processes’); nor for D2-C7 (‘Firms collaborate with

© Copyright by Lisa Margaret Buffinton 2019 | All Rights Reserved 148 Lisa Margaret Buffinton (ANU UID: U4699563) their competitors to operate Consultant Programs in response to mutual Information Threats faced by the industry at large’); nor for D2-C8 (‘Firms also recycle Consultant Programs in numerous jurisdictions to pre-empt or respond to the Information Threat gaining influence in other markets’).

Case C documents present three evidential references supporting D2-C1 (‘Firms use Expert Consultants to resist and delay restrictions on the marketability of the risky product’). There was a 69-day delay to get a consultant to review the evidence: E-mail from Schwartz of BSV dated 2 June 2015, noted that on 25 March 2015 ILGA deferred Woolworths’ applications ‘for the purpose of [Woolworths] being given an opportunity to address the matters raised in the BOCSAR report’ [267].

Case C documents present 22 evidential references supporting D2-C2 (‘Firms use Expert Consultants to generate uncertainty in the product risk discourse’). Here, the consultant sought to neutralise the risk discourse by focusing on the industry’s preferred standard of proof for the risk:

To be useful, such studies must have appropriate data of sufficient quality and relevance, apply statistical analysis correctly and be able to argue that the relationships found are causal rather than having other explanations [269, p. i].

And then by emphasising that the Research in question fails to meet this standard:

Outlet densities are not determined by the study, as would be the case in a clinical trial, and the reasons why outlet densities are what is observed are not known or not used, It is therefore impossible to state with any certainty that any relationships found are causal. Since the data covers most of the state and hence widely varying conditions, it is not clear that all the factors what may affect assault rates have been fully accounted for [269, p. i].

Notably, the firm does not offer evidence to support their contrary view.

Case C documents present 22 evidential references supporting D2-C4 (‘Expert Consultants are used neutralise the policy influence of the Information Threat’s proponents’). In his correspondence with the regulator, ILGA, Schwartz cites the findings in the DAA-BOCSAR Review to weaken the reliability of the BOSCAR Study that:

His overall finding is the BOCSAR Report provides little or no value in informing debate on the effects of outlet density. Even then, there are likely to remain questions regarding alternative explanations for relationships that might be found': That is to say, taking aside the errors in the BOSCAR [Study], its author also does not explore the possibilities for other influences or explanations. It contains unrealistic assumptions […] and the modelling relied upon is flawed

[…] Overall the statistical based limitations and errors in the analysis that forms the basis of the study are apparent from a review of Dr Henstridge’s Report [267].

Case C documents present three evidential references supporting D2-C5 (‘Firms use Expert Consultants to enhance the credibility of the firm’s policy position in relation to the health risks of its products, and regulatory responses to those risks’). In his correspondence with the regulator, ILGA, Schwartz cites the findings in the DAA-BOCSAR Review to conclude that:

Due to the findings in Dr Henstridge's Report, it is obvious the BOCSAR [Study] should have no adverse bearing on the decision making process on the liquor applications by Woolworths at Petersham, Haymarket or Minto. As our client has experienced substantial expense and delay in putting this significant independent evidence before the IL&GA, we ask that the 3 liquor applications in question be dealt with as soon as possible [267].

Case C documents present two evidential references supporting D2-C6 (‘Firms also use external lawyers to coordinate their “Consultant Programs”’). As noted in the DAA-BOCSAR Review, Henstridge acknowledges that:

I have been asked by Back Schwartz Vaughan, acting on behalf of Woolworths Limited, to provide an expert statistical review of the paper The effect of liquor licence concentrations in local areas on rates of assault in New South Wales authored by Nell Donnelly, Patricia Menendez and Nicole Mahoney of the NSW Bureau of Crime Statistics and Research [269, p. 1].

5.5.2.3 Dimension 3: Tactics

The analysis found that, in this case, Woolworths used Expert Consultants to execute information-transmitting Tactics that served the Woolworths Ltd’s strategic response to the Information Threat (D3). There were 11 references sourced from Case C GIPA documents which supported the resonance of this dimension with Woolworths Ltd’s practices. There are five characteristics of these Tactics. This Case resonated with three of these characteristics (D3-C2, -C3, -C5). Case C documents do not present evidential references for D3-C1 (‘Firms use expert consultants to actively address the information threat by producing and suppressing research on the product risks in question’); nor for D3-C4 (‘Firms use Expert Consultants to facilitate industry relationships with key decision makers’).

Case C documents present ten evidential references supporting D3-C2 (‘Firms use expert consultants to reactively address the information threat by monitoring, reviewing and criticising extant research on the product’s risks’). As stated by Woolworths’ lawyer, Schwartz, on 2 June 2015:

The BOSCAR [Study] is technical in nature and therefore Woolworths made arrangements (at considerable cost) for the data the subject of the BOCSAR [Study] to be released by the NSW BOCSAR and made available to an expert independent statistician for review [267].

Henstridge also states his intention to review and critique the BOCSAR Study as a ‘remediation’ effort to ‘correct’ the analyses in the BOCSAR Study - with results that are less threatening to Woolworths’ interests:

[The] first step to remediating the [BOCSAR Study] is to carry out the correct statistical analysis. My preliminary re-analysis suggests that apparent relationship between outlet densities and assaults may change substantially with such a re-analysis, indicating that the effects are more complex than presented in the paper and relationships are likely to vary significantly across different parts of the state [269, pp. i-ii].

Case C documents present one evidential reference for D3-C3 (‘Firms use Expert Consultants as CPA agents who disseminate the industry’s preferred interpretation of the product’s risks and policy solutions’). Henstridge’s BOCSAR review emphasises causality as the acceptable threshold for a product or business practice to bear a predictable risk:

In summary, the [BOCSAR Study] uses data that is not ideal for verifying causal relationships and analyses that data inappropriately. The Paper does little to advance the knowledge of the effects of outlet density and is potentially misleading, particularly in its suggestion of a threshold effect [269, p. ii].

Case C documents present one evidential reference supporting D3-C5 (‘Firms use Expert Consultants as CPA agents retained to troubleshoot public relations (PR) issues in relation to the Information Threat’). This is true in the context of Dr John Henstridge and his Consultancy firm, DAA, also completing a similar task for Woolworths in 2013 (see Case B).

5.5.2.4 Dimension 4: Qualities

The analysis found that, in this case, Woolworths Ltd used Expert Consultants for their special qualities that make them effective CPA agents who can support the firms’ response to the Information Threat (D4). There were 13 references sourced from Case C GIPA documents which supported the resonance of this dimension with Woolworths Ltd’s practices. There are five characteristics of Expert Consultants recruited by firms for CPA purposes. This Case resonated with all five of these characteristics (D4-C1, -C2, -C3, -C5).

Case C documents present three evidential references supporting D4-C1 (‘Firms recruit consultants who are willing to be paid by the firm for CPA services rendered’). In his correspondence with ILGA, Woolworths’ lawyer, Schwartz, stated that commissioning the

BOCSAR Review was an expensive undertaking: ‘Our client [Woolworths] has experienced substantial expense and delay in putting this significant independent evidence before the IL&GA’ [267, p. 1].

Case C documents present five evidential references supporting D4-C2 (‘Consultants who can be convincingly presented as a third party, independent scientist or academic’). Page 1 of Henstridge’s report opens with ‘Expert opinion – Dr John Henstridge’ under which he declares:

I have been asked by Back Schwartz Vaughan… to provide an expert statistical report of the [BOCSAR Study]… I provide this evidence in my capacity as an experienced statistician… I consider that I have specialist knowledge in relation to the subject matter of this report sufficient to enable me to provide an expert opinion on the matters set out in this report’ [269, p. 1].

Case C documents present one evidential reference supporting D4-C3 (‘Firms recruit Consultants whose credibility was bolstered by their affiliations with reputable organisations and institutes’). Page 1 of Henstridge’s report opens with ‘Expert opinion – Dr John Henstridge’ under which he lists his affiliations with the following reputable organisations in relation to his education, accreditations, memberships of professional organisations, and past and current leadership positions:

• Flinders University; • Australian National University; • Royal Statistical Society; • Statistical Society of Australia; • Australian Market and Social Research Society; • Australian Mathematical Society; • Australian Society for Operations Research; • American Statistical Association; • Institute of Mathematical Statistics; • Society for Industrial and Applied Mathematics; • Geostatistical Association of Australasia. • Data Analysis Australia (a consultancy); • Siromath (a consultancy); and • University of Western Australia [269, p. 1].

Case C documents present one evidential reference for D4-C4 (‘Firms sought out individuals who had the skills – or capacity to learn – to act in two capacities: as researchers, and as PR or Government Relations professionals’). This reference is sourced from the CV of Henstridge, which states:

John [Henstridge] also provides advice to legal teams and appears as an expert witness in court cases, a sign of his highly regarded qualifications and expertise [262, p. 1].

Case C documents present six evidential references supporting D4-C5 (‘Firms retained Consultants whose work outputs tend to favour the industry’s policy positions’). In their review and reproduction of the BOCSAR models, Henstridge found that ‘the estimated coefficients of the DAA models are substantially different from those in the [BOCSAR Study]’ [269, p. 8], and that ‘In particular the effects of outlet density are much less significant’ [269, p. 11]. While emphasising that ‘The Paper attempts to address a challenging problem, one that requires very careful analysis of reasonable quality data’, Henstridge concedes that he is ‘unable to comment upon the reasonableness of the [data and]…significant effort is required to fully address the reanalysis‘ [269, p. 14]. Despite Henstridge declaring that he had ‘not performed a complete reanalysis of the [BOCSAR] data’ [269, p. 14], he argues that ‘Until such reanalysis is conducted the [BOCSAR Study] is of little or no value in informing debate on the effects of outlet density’ [269, p. 15].

5.6 Concluding remarks

There are five conclusions that can be drawn from the taxonomy Application results described in chapter 5.

First, as shown in Table 8, there are strong similarities between how the alcohol and tobacco industries use expert consultants as CPA agents. This is evidenced by the fact that, on average, the alcohol cases studied in this chapter resonate with 80 per cent of the taxonomy. All three cases consistently supported the same 17 characteristics (representing 70 per cent of all 23 characteristics). Of these, over half (n=9) are new, distinct characteristics of this practice that extend the work of Bero and Jernigan and others. There was partial resonance across four characteristics, where some – but not all – cases supported these characteristics; of which, two are new, distinct characteristics that extend the work of Bero, Jernigan and others. The three cases studied consistently did not resonate with two characteristics in the taxonomy (D1-C2

© Copyright by Lisa Margaret Buffinton 2019 | All Rights Reserved 153 Lisa Margaret Buffinton (ANU UID: U4699563) and D2-C). Both D1-C2 and D2-C are new, distinct characteristics that extent the work of Bero, Jernigan and others.

The 20 percent difference is perhaps explained by the tobacco industry data consisting of internal, confidential documents not intended for audiences beyond the industry and its CPA agents; whereas the alcohol industry data consists of submissions to government entities which may have anticipated public release through freedom of information provisions. Hence, the commentary contained in the tobacco industry data is more revealing of the motives and methods behind the use of expert consultants as CPA agents, as compared to the alcohol industry data. Further, the volume of data available on the tobacco industry (see Table 12 in appendix 8.1) is more detailed and spans a larger time period of activity than the alcohol industry data available to the researcher at the time of this study (see Table 4 in section 3.7.3).

Second, considering Hillman and Hitt’s theory of CPA, the results suggest that perhaps Woolworths prefers to engage in “individualised” CPA on liquor licence matters. (Such matters can be termed “micro policy” matters). This may be because individualised (rather than collectivistic) CPA in licensing matters confers Woolworths a competitive advantage. This advantage is in terms of compelling CPA and CPA agents that support the firm to be granted a licence to grow its market share relative to its competitors. An area for further research is to compare Woolworths’ use of expert consultants as CPA agents to other firms within the same industry by using the same taxonomy. If Woolworths and other firms in the alcohol industry have similar traits, and particularly if evidence is found to support the trait of intra-industry collaboration (D2-C7), this may indicate that – as was the case in the tobacco industry – firms prefer to collaborate to use expert consultants in a “collectivistic” manner in “macro policy” matters governing all market players (e.g. alcohol marketing regulation) and allied industries (e.g. retailers, producers, on- versus off-licence venues). This may be because there is a common existential “information threat” to all market players and potentially to allied industries.

Third, considering Hillman and Hitt’s CPA theory, Case A appears to reflect Woolworths’ engagement in Transactional, Individual Information-based CPA. This case is a snapshot of an isolated policy scenario. However, it is possible to infer from the connections between Woolworths, their consultants and the global alcohol industry – as noted in relation to D2-C3,

D4-C1, and as reflected in Figure 14 – that Woolworths may have used these consultants as part of a Relational, Collectivistic, Informational CPA strategy.

Fourth, considering Hillman and Hitt’s CPA theory, Cases B and C appear to reflect Woolworths’ engagement in Transactional, Individual Information-based CPA. However, it is also possible to infer that Case B may also reflect Woolworths’ engagement in Relational, Individual, Informational CPA. This latter view is supported in Case B by the facts of Woolworths recycling the work of this consultant in two separate jurisdictions for two distinct licencing matters (as described in D2-C8, D3-C2 and D4-C1), and considering the connections between Woolworths, this consultant, and the alcohol industry at large (as described in relation to D4- C1 and D4-C4).

Fifth, it is unclear what effect consultants have on the regulatory outcomes of these particular cases – if any. The data collected for these cases (i.e. industry-authored submissions to public entities) does not contain information that might otherwise enable an analysis of possible relationships between the information transmitted by these consultants and subsequent decisions of the regulatory and policy authorities in these cases. In Case A, the regulatory authority agreed with the industry consultants’ conclusions that causality between the promotion and alcohol harms were not directly linked; whereas in Cases B and C the regulator did not concur with the industry consultants’ conclusions. While it was beyond the scope of this research project to explore this question, some observations are reflected in Appendix 8.2 of this thesis.

5.7 Chapter 5 References

15. Giorgi, C., & Ferguson, A. (2014, 20/07/2014). Shopper dockets – the OLGR investigation. DrinkTank. Retrieved from http://drinktank.org.au/2014/05/shopper-dockets-the-olgr- investigation/ 233. Jones, S. C. (2013). Centre for Health Initiatives. Expert Report on "shopper docket" Alcohol Promotions. Prepared for the NSW Office of Liquor, Gaming and Racing. Date Published: 20/05/2013. Archive: Newcastle, NSW, Centre for Health Initiatives, University of Wollongong. Released under Government Information Public Access Act 2009 (NSW). GIPAA Document number 14/37-33. Available from: http://drinktank.org.au/wp- content/uploads/2014/05/Document-17b-2.pdf. Date accessed: 17/06/2018. 234. Newson, P. (2013). Correspondence from OLGR Director (Compliance), P. Newson, to Prof. S. Jones: "Request for expert advice - confidential" (Letter). Date Published: 13 May 2013. Archive: Sydney, NSW, Released under Government Information Public Access Act 2009 (NSW). GIPAA Document number 14/37-16. Available from: http://drinktank.org.au/wp- content/uploads/2014/05/Document-162.pdf. Date accessed: 17/06/2018.

235. Kaye MLC, J. (2013). Correspondence from Dr John Kaye MLC to OLGR Director-General, Mark Paterson, "Re: The provision of free alcohol by Woolworths as part of their Everyday Reward scheme" (Letter). Date Published: 31/01/2013. Archive: Sydney, NSW, Released under Government Information Public Access Act 2009 (NSW). GIPAA Document number 14/37-01. Available from: http://drinktank.org.au/wp-content/uploads/2014/05/Document-011.pdf. Date accessed: 20/06/2018. 236. Unknown - redacted. (2013). Correspondence from a community group member to NSW Government. Date Published: 07/03/2013. Archive: Unknown location, Released under Government Information Public Access Act 2009 (NSW). GIPAA Document number 14/37-02. Available from: http://drinktank.org.au/wp-content/uploads/2014/05/Document-021.pdf. Date accessed: 20/06/2018. 237. Newson, P. (2013). Correspondence from OLGR Director (Compliance), Paul Newson, to Woolworths Pty Ltd National Liquor Compliance Officer, Kay Attard: "Notice to show cause - activities suspected of encouraging the misuse and abuse of liquor under section 102A" (Letter). Date Published: 25 March 2013. Archive: Released under Government Information Public Access Act 2009 (NSW). GIPAA Document number 14/37-03. Available from: http://drinktank.org.au/wp-content/uploads/2014/05/Document-031.pdf. Date accessed: 20/06/2018. 238. Schwartz, T. (2013). Correspondence from lawyer representing Woolworths, T. Schwartz, to OLGR Director Compliance, P. Newson: "RE: WOOLWORTHS LIMITED NOTICE TO SHOW CAUSE - SECTION 102A OF THE LIQUOR ACT 2007 (THE ACT)" (Letter; Report). Date Published: 18 April 2013. Archive: Sydney, NSW, Released under Government Information Public Access Act 2009 (NSW). GIPAA Document number 14/37-11. Available from: http://drinktank.org.au/wp- content/uploads/2014/05/Timeline-of-activities-Shopper-dockets-3-May-201311.pdf. Date accessed: 17/06/2018. 239. Newson, P. (2013). Correspondence from OLGR Director (Compliance), P. Newson, to Woolworths Pty Ltd lawyer, T. Schwartz: "Woolworths Limited - Activities suspected of encouraging the misuse or abuse of liquor under section 102A of the Liquor Act 2007" (Letter; Report). Date Published: 21 May 2013. Archive: Sydney, NSW, Released under Government Information Public Access Act 2009 (NSW). GIPAA Document number 14/37-17. Available from: http://drinktank.org.au/wp-content/uploads/2014/05/Timeline-of-activities-Shopper-dockets- 3-May-201311.pdf. Date accessed: 17/06/2018. 240. Wise, S. (2013). STATEMENT OF A WITNESS. In the matter of: Woolworth [sic] Pty Ltd (Report). Date Published: 20 May 2013. Archive: Sydney, NSW, Released under Government Information Public Access Act 2009 (NSW). GIPAA Document number 14/37-17. Available from: http://drinktank.org.au/wp-content/uploads/2014/05/Timeline-of-activities-Shopper-dockets- 3-May-201311.pdf. Date accessed: 17/06/2018. 241. Schwartz, T. (2013). Correspondence from lawyer representing Woolworths, T. Schwartz, to OLGR Director (Compliance), P. Newson: "RE: WOOLWORTHS LIMITED (WOOLWORTHS) - PROPOSED NOTICE UNDER SECTION 102A OF THE LIQUOR ACT 2007" (Letter; Report). Date Published: 04 July 2013. Archive: Released under Government Information Public Access Act 2009 (NSW). GIPAA Document number 14/37-25. Available from: http://drinktank.org.au/wp- content/uploads/2014/05/Timeline-of-activities-Shopper-dockets-3-May-201311.pdf. Date accessed: 17/06/2018. 242. Schwartz, T. (2013). A review of the relevant literature PSJ seeks to rely upon in the Jones Report (Letter; Report; Literature review). Date Published: 4 July 2013. Archive: Sydney, NSW, Released under Government Information Public Access Act 2009 (NSW). GIPAA Document number 14/37-25. Available from: http://drinktank.org.au/wp-content/uploads/2014/05/Timeline-of- activities-Shopper-dockets-3-May-201311.pdf. Date accessed: 17/06/2018. 243. Furnham, A. (2013). Critique of "Expert Report of 'shopper docker' Alcohol Promotions" by Sandra Jones (Letter; Report). Date Published: 20/05/2013. Archive: London, United Kingdom, Released under Government Information Public Access Act 2009 (NSW). GIPAA Document

number 14/37-25. Available from: http://drinktank.org.au/wp- content/uploads/2014/05/Timeline-of-activities-Shopper-dockets-3-May-201311.pdf. Date accessed: 17/06/2018. 244. Furnham, A. (2013). The CV of Professor Adrian Furnham (Curriculum Vitae). Date Published: 20/05/2013. Archive: London, United Kingdom, Released under Government Information Public Access Act 2009 (NSW). GIPAA Document number 14/37-25. Available from: http://drinktank.org.au/wp-content/uploads/2014/05/Timeline-of-activities-Shopper-dockets- 3-May-201311.pdf. Date accessed: 17/06/2018. 245. Hanson, D. (2013). Critique of "Expert Report on 'shopper docket' Alcohol Promotions" by Sandra Jones (Letter; Report). Date Published: 20/05/2013. Archive: Potsdam, New York, Released under Government Information Public Access Act 2009 (NSW). GIPAA Document number 14/37-25. Available from: http://drinktank.org.au/wp- content/uploads/2014/05/Timeline-of-activities-Shopper-dockets-3-May-201311.pdf. Date accessed: 17/06/2018. 246. Hanson, D. (2013). The CV of Professor David Hanson (Curriculum Vitae). Date Published: 20/05/2013. Archive: Postsdam, New York, Released under Government Information Public Access Act 2009 (NSW). GIPAA Document number 14/37-25. Available from: http://drinktank.org.au/wp-content/uploads/2014/05/Timeline-of-activities-Shopper-dockets- 3-May-201311.pdf. Date accessed: 17/06/2018. 247. Wilsmore, A. (2013). Correspondence from Woolworths Pty Ltd Manager (Public Affairs), A. Wilsmore, to The Honourable George Souris MP (Letter). Date Published: 30 April 2013. Archive: Sydney, NSW, Released under Government Information Public Access Act 2009 (NSW). GIPAA Document number 14/37-13. Available from: http://drinktank.org.au/wp- content/uploads/2014/05/Timeline-of-activities-Shopper-dockets-3-May-201311.pdf. Date accessed: 17/06/2018. 248. Schwartz, T. (2013). Correspondence from lawyer representing Woolworths, T. Schwartz, to OLGR Director (Compliance), P. Newson: "RE: WOOLWORTHS LIMITED - PROPOSED NOTICE UNDER SECTION 102A OF THE LIQUOR ACT 2007" (Letter). Date Published: 29 May 2013. Archive: Sydney, NSW, Released under Government Information Public Access Act 2009 (NSW). GIPAA Document number 14/37-18. Available from: http://drinktank.org.au/wp- content/uploads/2014/05/Timeline-of-activities-Shopper-dockets-3-May-201311.pdf. Date accessed: 1706/2018. 249. Shand, J. (2013). Correspondence from NSW OLGR Compliance Officer, J. Shand, to lawyer representing Woolworths, T. Schwartz: "RE: S102A notice Woolworths" (E-mail). Date Published: 27 March 2013. Archive: Sydney, NSW, Released under Government Information Public Access Act 2009 (NSW). GIPAA Document number 14/37-04. Available from: http://drinktank.org.au/wp-content/uploads/2014/05/Timeline-of-activities-Shopper-dockets- 3-May-201311.pdf. 250. Schwartz, T. (2013). Correspondence from lawyer representing Woolworths, T. Schwartz to OLGR Compliance Officer, J. Shand: "S102A notice Woolworths" (E-mail). Date Published: 21 June 2013. Archive: Sydney, NSW, Released under Government Information Public Access Act 2009 (NSW). GIPAA Document number 14/37-22. Available from: http://drinktank.org.au/wp- content/uploads/2014/05/Timeline-of-activities-Shopper-dockets-3-May-201311.pdf. Date accessed: 18/06/2018. 251. Furnham, A. (2009). (unpublished) Alcohol and Young Adults. Unpublished Report. Alcohol In Moderation (AIM) Digest. Retrieved from http://www.aim- digest.com/gateway/pages/S&P%20Alcohol%20and%20young%20People/Research%20&%20 Studies/articles/furnham.pdf 252. Schwartz, T. (2013). Correspondence from lawyer representing Woolworths, T. Schwartz, to NSW OLGR Compliance Officer, Jay Shand: "S102A notice Woolworths" (E-mail). Date Published: 27 March 2013. Archive: Sydney, NSW, Released under Government Information Public Access Act

2009 (NSW). GIPAA Document number 14/37-05. Available from: http://drinktank.org.au/wp- content/uploads/2014/05/Document-05.pdf. Date accessed: 17/06/2018. 253. Schwartz, T. (2013). Correspondence from lawyer representing Woolworths, T. Schwartz, and OLGR Compliance Officer, J. Shand: "Woolworths Limited: Notice to Show Cause" (E-mail). Date Published: 08 April 2013. Archive: Sydney, NSW, Released under Government Information Public Access Act 2009 (NSW). GIPAA Document number 14/37-07. Available from: http://drinktank.org.au/wp-content/uploads/2014/05/Timeline-of-activities-Shopper-dockets- 3-May-201311.pdf. Date accessed: 23/06/2018. 254. Schwartz, T. (2013). Correspondence from lawyer representing Woolworths, T. Schwartz, to OLGR Compliance Officer, J. Shand: "RE: S102A notice Woolworths" (E-mail). Date Published: 12 April 2013. Archive: Sydney, NSW, Released under Government Information Public Access Act 2009 (NSW). GIPAA Document number 14/37-09. Available from: http://drinktank.org.au/wp- content/uploads/2014/05/Timeline-of-activities-Shopper-dockets-3-May-201311.pdf. Date accessed: 17/06/2018. 255. Schwartz, T. (2013). Correspondence from lawyer representing Woolworths, T. Schwartz, to OLGR Compliance Officer, J. Shand: "S102A notice Woolworths". Date Published: 21 June 2013. Archive: Sydney, NSW, Released under Government Information Public Access Act 2009 (NSW). GIPAA Document number 14/37-23. Available from: http://drinktank.org.au/wp- content/uploads/2014/05/Timeline-of-activities-Shopper-dockets-3-May-201311.pdf. Date accessed: 23/06/2018. 256. Office of the Australian Information Commissioner. (2016). Loyalty program assessment: Woolworths Rewards — Woolworths Limited. Retrieved from Canberra: https://www.oaic.gov.au/privacy-law/assessments/loyalty-program-assessment-woolworths- rewards Date accessed: 23/06/2018. 257. Wiley Online Library. (2018). Drug and Alcohol Review: Description. Retrieved from http://au.wiley.com/WileyCDA/WileyTitle/productCd-DAR.html Date accessed: 24/02/2019. 258. Morrison, C., Ponicki, W. R., & Smith, K. (2015). Social disadvantage and exposure to lower priced alcohol in off-premise outlets. Drug and Alcohol Review, 34(4), pp. 375-378. 259. Morrison, C., Smith, K., Gruenewald, P. J., et al. (2016). Relating off-premises alcohol outlet density to intentional and unintentional injuries. Addiction, 111(1), pp. 56-64. 260. Addiction Journal. (2018). Aims & Scope. Retrieved from http://www.addictionjournal.org/pages/aims-scope Date accessed. 261. Henstridge, J., Hill, D., & Yano, Y. (2015). Review of Research Paper on Disaggregating Relationships between Off-premise alcohol Outlets and Trauma. August 2015. Client: Woolworths Limited. Project: WOOLWORTHS/23. Archive: Nedlands, WA, Released under Government Information Public Access Act 2009 (NSW). GIPAA Document number 15/2615-03. 262. Henstridge, J. (2015). John Henstridge Curriculum Vitae. Annexure B in "Review of Research Paper on Disaggregating Relationships between Off-premise alcohol Outlets and Trauma. August 2015. Client: Woolworths Limited. Project: WOOLWORTHS/23.". Archive: Sydney, NSW, Released under Government Information Public Access Act 2009 (NSW). GIPAA Document number 15/2615-04. 263. Cohen, B., Kennedy, R., & O'Donnell, D. (2016). Decision and Reasons for Decision. (Liquor decision - internal review - Dan Murphy's Cranbourne East). In. Melbourne, Victoria: Victorian Commission for Gambling and Liquor Regulation. 264. Correspondence (24 August 2015) from Woolworths Pty Ltd lawyer, T. Schwartz, to ILGA Officers, S. Salviejo and T. Trufea: "Report of Dr Henstridge_Review of Research Paper Disaggregating relationships between off-premise a 1-2 (Released under Government Information Public Access Act 2009 (NSW); File number GIPAA Document number 15/2615 2015). 265. Donnelly, N., Menendez, P., & Mahoney, N. (2014). The effect of liquor licence concentrations in local areas on rates of assault in New South Wales. (Attachment to GIPAA Document number 15/2615-06). Crime and Justice Bulletin, 181, pp. 1-16.

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6 Discussion

This thesis contributes to understanding how firms use expert consultants to transmit information with regulators of risky products. This topic has been extensively investigated regarding the tobacco industry, but is less well-understood in relation to the alcohol industry. Two research aims of this thesis were to: (1) offer a framework that enables policy makers and other public interest entities to identify when and how firms use expert consultants as agents of their CPA (chapter 4); and (2) contribute to filling knowledge gaps that exist in relation to the alcohol industry (chapter 5). Reflecting on the results of this study and extant literature, there are three key findings that are discussed in this chapter:

• The use of expert consultants to hinder policy-making on health risks associated with consumer products. • The function of this practice to advance the economic interests of risky product industries. • The need to foster transparency and support researcher independence to address the problems inherent in this practice.

6.1 The use of expert consultants as CPA agents who hinder policy-making on health risks associated with consumer products

From the results of the study, firms use expert consultants as CPA agents to hinder rational policy making on health risks associated with their products. The proposed model generated by the study defines 23 characteristics of this practice, which are grouped in four dimensions. The current study indicates that this practice occurs in numerous regulatory and policy-making contexts, and across different industries. Considering the results of this study, it is problematic that firms use expert consultants to hinder public knowledge of, and policies responding to, the health risks associated with their products. These three sub-topics are discussed below.

6.1.1 The proposed model for defining and identifying the phenomenon of firms using expert consultants as CPA agents

The model generated by the present study (the “proposed model”) is the product of an iterative process (described in chapter 3). The proposed model combines data analysis with extant literature across several relevant disciplines, reflecting multiple theories of governance, communication, political economy and organisational studies to identify and understand the characteristics of how firms use CPA consultants. This model is presented in Figure 8. It encompasses 23 characteristics of how firms use expert consultants as CPA agents which are grouped in four dimensions: distinct drivers, strategic and tactical CPA approaches to using expert consultants, and the distinct attributes of CPA expert consultants. The model requires further verification to determine its generalisability to risky product industries other than the tobacco and alcohol industries included in this study.

The results showed that firms use expert consultants as CPA agents where an “information threat” may pose an existential threat to the firm. The tobacco industry associated the “information threat” (D1-C1) with unfavourable changes in market regulation (D1-C4) leading to weakened market performance (D1-C5). To a lesser extent, the information threat (D1-C1) was also associated with legal risks (D1-C2) and brand and alliance risks (D1-C3) leading to weakened market performance (D1-C5).

Expert consultants were used as CPA agents to transmit information in a manner that achieves special performative effects in the policy arena. These effects are captured in four characteristics within this taxonomy: delaying or resisting unfavourable (to the firm) policy changes (D2-C1), Neutralising adversaries (D1-C2), enhancing the credibility of the firm in policy discourse (D2-C3), and generating doubt around unfavourable (to the firm) evidence of product or business practice risks (D2-C4). In addition, there are four strategic approaches to optimising the performative effectiveness of expert consultants acting as CPA agents. These include: subverting scientific processes (D2-C5), using lawyers as intermediaries between consultants and the firm (D2-C6), Collaborating with market competitors in coordinating and funding expert consultants (D2-C7), and recycling expert consultants in different jurisdictions (D2-C8).

Firms use CPA Expert Consultants to execute information-transmitting tactics. These tactics serve the Approach and Outcomes of a firm’s strategic response to an Information Threat (D3). These tactics are captured in five characteristics within the taxonomy. Firms use CPA Expert Consultants to: produce and suppress research on product risks concerning the client Firm (D3-C1); monitor, review or criticise extant research on product risks concerning the client Firm (D3-C2); and disseminate the client Firm- or Industry-preferred interpretation of product risks (D3-C3). In addition, firms use CPA Expert Consultants to facilitate relationships with decision- makers (on behalf of the client firm or industry) regarding regulation of their product and practice risks (D3-C4) and troubleshoot PR issues in relation to the Information Threat (D3- C5). It is worth noting that the facilitation of industry relationships with regulators via consultants may be influenced or limited by the regulatory systems in which they operate. Systems where an industry has a ‘seat at the table’ create opportunities for consultants to facilitate industry relationships with decision-makers in a more transparent manner; whereas systems where regulators are meant to engage with industry at arms-length limit opportunities for consultants to facilitate industry relationships. This is not to say that in the latter scenario industries do not use consultants as relationship brokers (D3-C4), but they may choose to do so by less transparent means. In such a situation, the regulator should be publicly transparent regarding all engagement with industry representatives and consultants.

The results show that there are five attributes sought after of expert consultants who act as industrial CPA agents. These attributes – captured in the taxonomy – include the qualities of: willingness to be paid by the industry for their services (D4-C1), being presentable as independent, third party subject matter expert (D4-C2), having affiliations with reputable institutions (D4-C3), producing work outputs that favour the preferred position of their sponsor industry (D4-C4), and having the capability to serve dual roles as academically- grounded subject matter experts and as public relations and government relations professionals (D4-C5).

The model was developed to address two gaps in extant literature on this topic. First, research identifying common attributes of how firms use expert consultants as agents of Informational CPA. Second, research examining the extent to which these attributes can be identified in the practices of the alcohol industry in Australia. Some of these tactical characteristics were listed by Bero’s characterisation of tobacco industry science manipulation activities [33]. This model

© Copyright by Lisa Margaret Buffinton 2019 | All Rights Reserved 162 Lisa Margaret Buffinton (ANU UID: U4699563) focused on informational CPA tactics which consultants performed but did not incorporate the drivers, strategies and attributes of industrial CPA consultants, and was not applied to the alcohol industry [90]. Some of the characteristics were also listed by Jernigan’s (2002) list of strategies used by alcohol producers to influence alcohol science and policy [74]. However, Jernigan’s list focused mainly on informational CPA tactics. This model also did not explain the motives and mechanisms by which firms use CPA consultants, nor did it map the attributes of these consultants. Extant literature on this topic has not produced a broader set of common attributes that identify this phenomenon of firms using expert consultants as CPA agents.

6.1.2 Expert CPA consultants are active in numerous regulatory contexts and industries

The results show how the proposed model, developed in the tobacco industry context, was successfully applied to the alcohol industry context. The resonance of the model between the tobacco and alcohol industries reflects how formulaic these industries are in their use of CPA consultants to shape product risk discourse and regulatory outcomes in their favour. At least the obvious hallmarks of this practice (captured in the proposed model) enable trusted officials and independent researchers to identify and critically examine CPA consultant activities.

The proposed model emerging from this project was developed to enable cross-examination of the CPA use of expert consultants in risky product industries, in the same fashion that Bero’s science manipulation taxonomy has enabled cross-industry comparisons [33; 90; 91]. Hypothetically, there may be many other policy contexts where this practice may exist, and where the proposed model may be applied. Two such policy areas are “e-cigarettes” and recreational cannabis or THC. E-cigarettes (a.k.a. “vaporisers”, or “vapes”) create an inhaled aerosol of ultrafine particles that rapidly deliver nicotine to the brain by heating a liquid (without combustion). It is feasible that the e-cigarette industry may use CPA consultants to influence scientific research and policy on e-cigarettes, considering: the tobacco industry’s substantial economic stake in the e-cigarette market [270, p. 5]; the opportunities to influence a relatively new evidence and policy space [271; 272]; and the complementarity of e-cigarettes with tobacco industry interests in reducing smoking cessation rates and their appeal to young non-smokers [273]. Users administer THC by various means, including smoking cannabis leaf in cigarettes or water pipes (a.k.a. “bongs”) and, increasingly, by using liquid THC in electronic

“vaping” devices similar to e-cigarettes [274, pp. 2-3]. It is feasible that the cannabis industry may use CPA consultants to influence scientific research and policy on cannabis, considering: what is known at this stage about how the tobacco and alcohol industries share economic interests in the cannabis industry [275; 276; 277; 278; 279]; the industry’s reliance on daily users [279] whose burden of cannabis harms, including dependence, may prompt regulatory restrictions; and the increasing political sophistication of this industry [279]. Applying the proposed model to these industries would aid regulators and policy-makers in critically examining the provenance and credibility of information on e-cigarette and cannabis risks disseminated by these industries.

6.1.3 Expert consultants used for CPA purposes are problematic for public trust and health

The results of this study advance the understanding of what is problematic about CPA consultants. Here, the problem is that firms use CPA consultants to manipulate product risk discourses by “manufacturing doubts” around credible research evidence. The findings suggest that firms use CPA consultants to have both direct and indirect effects on regulatory and policy proceedings concerned with defining product risks and associated regulatory interventions. This is problematic for two reasons. First, it is a means of risky product firms avoiding accountability for harms associated with their business activities by ‘[using] the existence of uncertainty […] as a tool to counter imposition of public health protections that may cause them financial difficulty’ [3]. Second, this activity intends to disempower regulatory action and encourage stasis in rational policy-making on risky product harms. As noted by Michaels and Monforton, accepting industrial doubts creates a ‘desire’ among regulatory authorities and policy makers ‘for absolute scientific certainty [that] is both counterproductive and futile’ [3]. However, as warned by Austin Bradford Hill, a lack of absolute certainty in evidence ‘does not confer upon us a freedom to ignore the knowledge we already have, or to postpone action that it appears to demand at a given time’ [4]. Regulators and policy makers should be empowered by the evidence and advancing knowledge they have on hand locally and globally, and should resist disempowering industry narratives promoting causality. This is necessary to preserve public trust in their capacity and willingness to act on consumer health risks.

The results of this study also show that the problem exists in two areas. First, it is present at various levels of policy and regulation development and enforcement: in micro-level administrative proceedings (e.g. licensing decisions); and, in macro-level policy-setting proceedings concerned with, inter alia, risky product promotion, pricing, availability and consumer information. Second, it is present in other public domains where CPA consultants are active, including: academic institutions and journals; not-for-profit organisations; public discourse; and popular media. The many domains of where this problem lies calls for greater engagement of, and support for, disinterested expert input to product risk discourses.

The results point to two main reasons as to why this problem exists. First, it exists because this practice complements and reinforces other non-market activities (NMA) undertaken by firms to advance their economic interests. These activities, and the social capital of the product, brand or industry, generate multiple pressures and incentives for politicians, policy-makers and regulators to either:

• Actively protect these industries from health policies that threaten their economic interests, or • Passively protect them through indecisiveness on whether or how to respond to the product’s risk.

As tobacco and alcohol impose disease burdens on their consumers and others, regulatory protectionism or inaction has a human toll and opportunity cost that should be minimised.

Second, this problem exists because regulation and policy arrangements create opportunities for it to occur. There is insufficient transparency in regulatory proceedings if industrial submissions commenting on the evidential basis for decisions are only made public through freedom of information requests. In addition, current administrative arrangements make it resource-intensive for authorities and policy makers to critically evaluate evidence submitted to them. More information sharing, transparency, and admissible evidence standards for the regulation of risky products may hold industry consultants to a higher standard (e.g. the same standard expected of disinterested independent academics). Creating a level playing field of information in regulatory proceedings may reduce opportunities for CPA consultants to manipulate the risk discourse.

Four groups appear to be adversely affected by this problem of firms using expert consultants as CPA agents. First, independent researchers subject to industrial pressure and intimidation may experience a “chilling effect” on their engagement with research and policy analysis into product risks. Second, the confidence and resolve of decision makers to promote politically risky but health-effective policies may be weakened by industry-sowed evidential doubts. Third, communities, health systems and the economy at large (who may otherwise benefit from health-effective policies) bear the health burden of protections afforded to risky product industries which are justified by industry-sowed evidential doubts. Fourth, consumers and others at risk of harm from the consumption of risky products individually bear the health burden of such industrial protections rationalised by industry-sowed doubts around product risks.

6.2 The use of expert consultants as CPA agents to advance the economic interests of risky product industries.

Like gears in a machine, as illustrated in Figure 21, four forces give impetus to the use of expert consultants as agents of industrial corporate political activities: i. Firms create and promote their consultants as legitimate actors or nodes in regulatory networks (“Promoting consultants as nodal actors”); ii. Firms do this to optimise the performative impact and influence of information transmitted by their consultants (“Perlocutionary effects”); iii. Firms use their consultants to engage with and counter the “Force of New ideas” to shape policy developments; iv. Firms seek to shape policy developments in this way to serve their economic interests.

Considering the results of this study – and extant theory and literature – four theories underpin the above-listed forces (see Figure 21): Networked, or Nodal Governance Theory; Theory of Performativity; “Force of New Ideas”; and NMA, CPA and Interest Group Theory. These theory- driven explanations also make clear that the use of expert consultants is not about sharing information to achieve mutual understanding of a firm or industry’s views; nor are they used in the disinterested pursuit of “truth” on a commercially contentious policy topic. This appears to be a calculated, strategic and expensive communicative activity that these companies engage in to create a favourable policy environment for their market operations.

Figure 21: Four forces give impetus to the use of expert consultants as CPA agents

Promoting ‘Force of consultants New Ideas’ as nodal actors Perlocutionary Economic effects interests

6.2.1 Promoting consultants as nodal actors

As noted previously, there are many and varied stakeholders with an interest in consumer product regulation. Nodal governance theory helps to make sense of the data and results because it accounts for polycentric sources of influence who ‘[shape] the flow of events’ in the regulation and governance of risky consumer products [280, p. 119]. In the contexts studied for this dissertation, what was being governed was not just these products, but more fundamental objects: the accepted ideas and evidence that justify regulation and policy- making decisions related to the products. As noted by Holley and Shearing (citing Wood and Dupont [281]), regulatory ‘networks and [their] nodal assemblages constitute “temporary hubs of practices” involving iterative processes carried out by a range of actors who occupy different positions of influence’ [100, p. 167]. Hence, firms can create and promote their expert consultants as “legitimate” nodal actors in regulatory networks when the forces governing ideas on product risk are fluid. To borrow Burris and colleagues’ and Drahos’ terminology, this fluidity may be because there are neither ‘fixed’ nodes [282], nor designated nodes with the power to regulate other nodes, who may govern ideas and information on product risks [283].

The results show that regulatory authorities looked to subject matter experts (SMEs) to govern or endorse ideas that inform regulatory decisions. In the tobacco industry cases, regulators looked to SMEs to govern ideas and information concerning tobacco smoking risks. This was echoed in the alcohol industry cases. In Case A, OLGR looked to Professor Sandra Jones as an independent, SME governor of ideas and information regarding alcohol advertising risks.

Similarly, in Cases B and C, ILGA looked to Smith, Morrison and BOCSAR as independent SME governors of ideas and information regarding alcohol outlet density risks. In these cases, the regulator (a governing node in itself) gave the firm (Woolworths – another node in the regulatory network) the opportunity to reply to the statements and conclusions of the independent researchers. In response, Woolworths created and promoted the position of their expert consultants as nodal actors in the governance of ideas relevant to alcohol risk and alcohol regulation.

6.2.2 Optimising CPA consultants’ perlocutionary effects

As noted earlier in this thesis, words can ‘do things’ by the act of speaking, by the content of what is said, and by the consequential effect the speech act has on others. The Theory of Performativity – particularly the concept of perlocutionary speech acts – helps to make sense of the data and results because it accounts for how information transmitted by CPA consultants to other nodes in regulatory networks are “speech acts” that are intended to produce desired effects on others. The view of French philosopher, Jacques Derrida, that words in and of themselves – not extrinsic (e.g. institutional) factors – give an actor or speaker performative influence [96], helped to make sense of the methods by which risky product industries used consultants to achieve perlocutionary effects. However, the data also show that risky product industries selected consultants with social and institutional attributes that gave their consultants performative influence. This accords with the view that the possession (or lack) of social capital within the actor or speaker can determine the success or failure of their performative action [97]. Firms support perlocutionary effectiveness of consultants by protecting the appearance (and associated social capital) of industrial CPA consultants as independent, disinterested experts. The distinction between “communicative” and “strategic” performative actions [99] also helps make sense of the data to understand how speech acts by CPA consultants may serve dual purposes. Information transmitted by consultants may be presented as a “communicative” action that serves to foster mutual understanding of product risk interpretation between a firm and a regulatory body. However, information transmitted by consultants can also be a “strategic” action by firms to advance ulterior motives.

6.2.3 Using CPA consultants to counter the “Force of New Ideas”

Hood’s Force of New Ideas concept [102, p. 18] helps explain how firms use the performative influence of their CPA Consultants to counter an “information threat”. Here, ‘ideas’ refer to concepts ‘which express how and why the government ought to control business’ [284, p. 26]. Ideas and ideology, ‘provide the essential basis of assumed social realities whereby political leaders explain and justify their policies to the public, backed by a media which keeps the range of “realistic” options within narrow limits’ [285]. The data shows that firms use Expert CPA Consultants as a contrary ‘force of ideas’ in two ways. First, as means of countering the ‘force of ideas’ (i.e. the “information threat”) that upset – or threaten to upset – the status quo of a firm or industry. This information threat may create existential threats to the firm or industry in question. The manner in which expert consultants counter the Force of New Ideas is also reflected in the Information-transmitting tactics noted by Hillman and Hitt, which include: lobbying; commissioning research projects and reporting research results; expert witness testimony; and supplying position papers or technical reports [39, pp. 834-835]. Second, Consultants act as CPA agents of firms or industries producing and disseminating new ideas of their own through research that is favourable to industry-preferred policy positions.

It is worth noting that the use of expert consultants is a highly secretive corporate activity – as reflected in the tobacco industry data of this study. Evidence of alcohol industry involvement in research disseminated by industry consultants was identified in in Case A (see Figure 14). When industries present evidence to demonstrate their idea and diminish the standing of an “information threat”, the integrity of their information should be questioned given the potential for industry bias in the research, and the possibility that citations are falsified for illusory credibility.

As reflected in the data, expert consultants acting as CPA agents do not appear to engage extensively in ‘demonstrations of experimental evidence’ to counter the Force of New Ideas. In the alcohol industry cases, Woolworths and its CPA agents tended to rely on ‘rhetorical power’ and agenda-driven logic to critique these ideas and counter their influence. This is because in the regulatory context of the alcohol case studies, the onus was on the independent researchers to demonstrate evidence of the risks, but no expectation was placed on the industry to prove the absence of risks associated with their product or business practices.

6.2.4 Using CPA consultants to advance the economic interests of the firm or industry

NMA theory and CPA theory are complementary. They account for how the political motives and actions of firms (and their agents) – including efforts to counter the influence of an “information threat” through the Force of New Ideas – serve the fundamental market-based interests of the firm. Hillman and Hitt’s three imperatives for firms to engage in CPA [39] are reflected in the taxonomy. First, as government policies may influence competitive environments and transaction costs, they can influence the productivity and competitive performance of firms and industries. Second, firms are compelled to act when there is a significant relationship between the competitive and political strategies of a firm. Third, the objective of CPA is to secure the firm’s continued survival and success by producing business- friendly public policy outcomes. Hillman and Hitt’s theory of CPA also invokes the performative influence of speech acts in their explanations of how firms transmit information as a means of supporting their commercial interests [39, pp. 834-835]. The use of Expert CPA Consultants can be explained by Interest Group Theory, in terms of the pressure they bear on a regulatory space in the pursuit of policies that favour the patron industry [102, p. 18].

6.3 The need to foster transparency and support researcher independence to address the problems inherent in this practice.

At its core, the problem that this thesis has explored and illuminated is one of transparency and research integrity. To be effective, all solutions relevant to the regulatory systems for tobacco and alcohol need to foster transparency and support research independence in policy making processes and research. Considering the results of this study, there are four areas of effort and regulation which may address the problematic influence of CPA consultants. First, governments should set rules for admissible evidence in regulatory proceedings – particularly those concerned with risky products. Second, the rules governing lobbyist registers should be amended to expand the scope of whom should be registered as lobbyists. This expanded scope should include in-house government relations staff and expert consultants who receive funding directly or indirectly from a company or industry-funded group to make public

© Copyright by Lisa Margaret Buffinton 2019 | All Rights Reserved 170 Lisa Margaret Buffinton (ANU UID: U4699563) representations or conduct research commissioned by the company or industry-funded group. Third, governments should digitally publish on their websites all submissions they receive regarding a policy or regulatory decision to improve transparency and information sharing around the CPA of risky product firms and their critiques of academic research. Fourth, governments and universities should cooperate to encourage greater engagement of academic researchers in regulatory and policy processes as independent subject matter experts. These measures would serve to support objective analysis of industry submissions and the evidence presented by their CPA agents, including expert consultants.

More broadly, research from the Management (a.k.a. Organisational) Studies field insufficiently engages with critical considerations of firms’ social responsibilities as political actors. This should change. A key paper by Andreas Scherer has raised this criticism in the context of Frynas and Stephens’ [286] advancement of ‘value-free research’ into political corporate social responsibility (CSR) [287, p. 15] that does not ‘address the inherent conflict of values in political CSR’ [287, p. 1]. Scherer was concerned that ‘their [Frynas and Stephens’] approach, when adopted in practice, will impede rather than promote social welfare’ [287, p. 1]. It is important that the Management Studies field engages with critical normative considerations of corporate activities because this field influences the scholarship and practices of future business managers. Borrowing MacKenzie’s concept, Management Studies is analogous to an ‘engine’ that is an active participant in and creator of business realities, not a ‘camera’ that neutrally captures a reality of business [288]. Hence, CPA should not be assumed to be an amoral or socially neutral activity or research subject.

6.4 Limitations of this study

There were two methodological limitations of this research project. First, according to Mark Aldenderfer and Roger Blashfield, cluster analysis (the method underpinning the taxonomy development and application) has inherent limitations. These include: Different clustering methods can and do generate different solutions to the same data set; and the strategy of cluster analysis is structure-seeking although its operation is structure-imposing [120]. Second, as noted earlier, this study only sought to identify ‘the form and nature of what exists’ (i.e. Contextual purpose) and – if enabled by the data – examine ‘the reasons for, or causes of, what exists’ [92, p. 307]; this project did not evaluate the effectiveness of the phenomena studied.

There are three limitations to the data sample used in this study. First, the data collection was intentionally limited to two industries (the tobacco and alcohol industries). While this enables comparison of the two industries, the research findings and their implications for other industries beyond the alcohol and tobacco industries would require application of the findings to data from those other industrial contexts. Second, the tobacco industry data is richer than alcohol industry data. Tobacco industry data includes internal, formerly secret communications between industry figures and their CPA agents (i.e. consultants and lawyers), which contains less inhibited expressions of the intentions, interests and impact of these figures in tobacco policy development. Alcohol industry data is limited to one firm (Woolworths) and confidential communications with public entities that the firm would have known could be released to the general public through freedom of information processes. Hence, the alcohol industry data contains communications that are likely to be more inhibited expressions of the intentions, interests and impact of these figures in alcohol policy development. Third, the volume of data available on the tobacco industry is greater and spans a longer time period of activity than the alcohol industry data available to the researcher at the time of this study

6.5 Summary

From the results of the study, firms use expert consultants as CPA agents to hinder rational policy making on health risks associated with their products. Considering the results of this study – and extant theory and literature – four theories underpin the above-listed forces (see Figure 21): Networked, or Nodal Governance Theory; Theory of Performativity; “Force of New Ideas”; and NMA, CPA and Interest Group Theory. These theory-driven explanations also make clear that the use of expert consultants is not about sharing information to achieve mutual understanding of a firm or industry’s views; nor are they used in the disinterested pursuit of “truth” on a commercially contentious policy topic. This appears to be a calculated, strategic and expensive communicative activity that these companies engage in to create a favourable policy environment for their market operations. At its core, the problem that this thesis has explored and illuminated is one of transparency and research integrity. To be effective, all solutions need to foster transparency and support research independence in policy making processes and research.

6.6 Chapter 6 references

3. Michaels, D., & Monforton, C. (2005). Manufacturing uncertainty: Contested science and the protection of the public's health and environment. American Journal of Public Health, 95, pp. 39-48. doi:10.2105/AJPH.2004.043059 4. Hill, A. B. (1965). The environment and disease: association or causation? Proceedings of the Royal Society of Medicine, 58, pp. 295-300. 33. Bero, L. A. (2005). Tobacco industry manipulation of research. Public Health Reports, 120(2), pp. 200-208. 39. Hillman, A. J., & Hitt, M. A. (1999). Corporate political strategy formulation: A model of appoach, participation, and strategy decisions. Academy of Management Review, 24, pp. 825-842. doi:10.5465/AMR.1999.2553256 74. Jernigan, D. H. (2012). Global alcohol producers, science, and policy: The case of the international center for alcohol policies. American Journal of Public Health, 102, pp. 80-89. doi:10.2105/AJPH.2011.300269 90. White, J., & Bero, L. A. (2010). Corporate Manipulation of Research: Strategies Are Similar across Five Industries. Stanford Law & Policy Review, 21(105), p. 133. 91. Savell, E., Fooks, G., & Gilmore, A. B. (2016). How does the alcohol industry attempt to influence marketing regulations? A systematic review. Addiction, 111(1), pp. 18-32. doi:10.1111/add.13048 96. Derrida, J. (1988 [1972]). Signature Event Context in Limited Inc. Evanston, IL: Northwestern University Press. 97. Bordieu, P. (1991). Language and Symbolic Power. Cambridge: Polity. 99. Habermas, J. (1984 [1981]). The Theory of Communicative Action (Vol. 1). London: Heinemann. 100. Holley, C., & Shearing, C. (2017). A nodal perspective of governance: Advances in nodal governance thinking. Chapter 10 in P. Drahos (Ed.), Regulatory Theory: Foundations and Applications (pp. 163-180). Canberra: ANU Press. 102. Hood, C. C. (1994). Explaining Economic Policy Reversals. Chapter 1 in B. UNKNOWN (Ed.), Unknown book title. Unknown publisher: Unknown Publisher. 120. Aldenderfer, M. S., & Blashfield, R. K. (1984). Cluster Analysis. Retrieved from http://methods.sagepub.com/book/cluster-analysis doi:10.4135/9781412983648 270. Philip Morris International. (2018). Investor Information. Updated: October 2018. Retrieved from Unknown. 271. Knaus, C. (2018, 03 October). Philip Morris lobbying on e-cigarettes hidden from Australian public. The Guardian Australia. Retrieved from https://www.theguardian.com/australia- news/2018/oct/03/philip-morris-lobbying-on-e-cigarettes-hidden-from-australian-public 272. House of Representatives Standing Committee on Health Aged Care and Sport. (2018). Report on the Inquiry into the Use and Marketing of Electronic Cigarettes and Personal Vaporisers in Australia. Canberra: Commonwealth of Australia. 273. Glantz, S. A., & Bareham, D. W. (2018). E-Cigarettes: Use, Effects on Smoking, Risks, and Policy Implications. Annual Review of Public Health, 39(1), pp. 215-235. doi:10.1146/annurev- publhealth-040617-013757 274. WHO. (2016). The health and social effects of nonmedical cannabis use. Retrieved from Geneva: http://www.who.int/substance_abuse/publications/msbcannabis.pdf Date accessed: 23/02/2019. 275. Barry, R. A., Hiilamo, H., & Glantz, S. A. (2014). Waiting for the Opportune Moment: The Tobacco Industry and Marijuana Legalization. The Milbank Quarterly, 92(2), pp. 207-242. 276. Subramaniam, P., McGlade, E., & Yurgelun-Todd, D. (2016). Comorbid Cannabis and Tobacco Use in Adolescents and Adults. Current Addiction Reports, 3(2), pp. 182-188. doi:10.1007/s40429-016-0101-3

277. Lemyre, A., Poliakova, N., & Bélanger, R. E. (2019). The Relationship Between Tobacco and Cannabis Use: A Review. Substance Use & Misuse, 54(1), pp. 1-16. doi:10.1080/10826084.2018.1512623 278. Lachapelle, T. (2018, 28 August). As Big Tobacco Smolders, Booze Makers Get Higher on Pot. Bloomberg. Retrieved from https://www.bloomberg.com/opinion/articles/2018-08-28/booze- makers-are-first-movers-in-marijuana-as-big-tobacco-smolder 279. Subritzky, T., Lenton, S., & Pettigrew, S. (2016). Legal cannabis industry adopting strategies of the tobacco industry. Drug and Alcohol Review, 35(5), pp. 511-513. doi:doi:10.1111/dar.12459 280. Parker, C., & Braithwaite, J. (2003). Regulation in P. Cane & M. Tushnet (Eds.), The Oxford Handbook of Legal Studies (pp. 119-145.). Oxford: Oxford University Press. 281. Wood, J., & Dupont, B. (2006). Introduction: Understanding the governance of security in J. Wood & B. Dupont (Eds.), Democracy, Society and the Governance of Security (pp. pp. 1–10). Cambridge: Cambridge University Press. 282. Burris, S., Drahos, P., & Shearing, C. (2005). Nodal governance. Australian Journal of Legal Philosophy, 30, pp. 30–58. 283. Drahos, P. (2004). Intellectual property and pharmaceutical markets: A nodal governance approach. Temple Law Review, 77, pp. pp. 401–424. 284. Harris, R. A., & Milkis, S. M. (1996). The Politics of Regulatory Change (2nd Edition ed.). New York: Oxford University Press. 285. Self, P. (1993). Goverment by the Market? The Politics of Public Choice. Princeton, NJ: Princeton University Press. 286. Frynas, J. G., & Stephens, S. (2015). Political Corporate Social Responsibility: Reviewing Theories and Setting New Agendas. International Journal of Management Reviews, 17(4), pp. 483-509. doi:doi:10.1111/ijmr.12049 287. Scherer, A. G. (2017). Theory Assessment and Agenda Setting in Political CSR: A Critical Theory Perspective. International Journal of Management Reviews, 20(2), pp. 1-24. doi:10.1111/ijmr.12137 288. MacKenzie, D. (2006). An Engine, Not a Camera. Cambridge, MA: MIT Press.

7 Conclusion

7.1 The importance of addressing industrial use of expert consultants as CPA agents

This study has identified how alcohol firms, like the tobacco industry, use expert consultants as CPA agents to manipulate product risk discourses, and that they do this by “manufacturing doubts” around credible research evidence.

This is problematic for two reasons. First, this activity is an industrial means of avoiding accountability for harms associated with business activities. Second, this activity works to disempower government regulatory action and encourage stasis in rational policy-making on the prevention of risky product harms. Due to tobacco and alcohol imposing disease burdens on their consumers and others, regulatory protectionism or inaction has a human toll and opportunity cost that should be minimised.

The study shows that the problem exists in two areas. First, it is present at various levels of policy and regulation development and enforcement. Second, it is present in other public domains where CPA consultants are active. The many domains of where this problem lies calls for greater engagement of, and support for, disinterested expert input to product risk discourses.

There are two main reasons as to why this problem exists. First, it exists because this practice complements and reinforces other non-market activities (NMA) undertaken by firms to advance their economic interests. Second, regulation and policy governance arrangements create opportunities for this practice to occur. More information sharing, transparency, and admissible evidence standards for the regulation of risky products may hold industry consultants to a higher standard (e.g. the same standard expected of disinterested independent academics). Creating a level playing field of information in regulatory proceedings may reduce opportunities for CPA consultants to manipulate the risk discourse.

Four groups appear to be adversely affected by this problem: independent researchers; regulatory and policy decision makers; communities, health systems and the economy at large;

© Copyright by Lisa Margaret Buffinton 2019 | All Rights Reserved 175 Lisa Margaret Buffinton (ANU UID: U4699563) and risky product consumers and others at risk of harm from the consumption of these products. Regulators and policy makers should be empowered by the evidence and advancing knowledge they have on hand locally and globally, and should resist disempowering industry narratives promoting causality. This is necessary to preserve public trust in their capacity and willingness to act on consumer health risks.

This thesis concludes that Industrial expert consultants are not disinterested authorities on the subjects for which their services are commissioned. Rather, they are agents of their industrial sponsor’s political interests. Consequently, any information they produce and submit to regulators should be treated with scepticism and made publicly-available to support transparent policy-making.

7.2 What this study adds to this field of research

This thesis proposes a model of how firms use expert consultants as Informational CPA agents. This model responds to the question What are the characteristics of how firms use expert consultants as Informational CPA agents? The results revealed 23 characteristics of how firms use expert consultants as CPA agents. This thesis found four dimensions to the Tobacco Industry’s use of expert consultants for CPA purposes: distinct drivers, strategic and tactical CPA approaches to using expert consultants, and the distinct attributes of CPA expert consultants. A major contribution of this study are 15 original characteristics of how firms use expert consultants as CPA agents. This builds on the work of Bero, Jernigan and others who characterised how the tobacco, alcohol and other industries engaged in particular tactics to manipulate risk discourses. [33; 74; 90; 91]. These original, distinct characteristics include:

• D2-C6. Use lawyers to coordinate Consultancy Programmes • D2-C7. Collaborate with competitors to fund and implement Consultancy Programmes • D2-C8. Recycle Consultancy Programmes in numerous jurisdictions • D4-C2. 3rd party independent scientist or academic • D4-C3. Affiliated with reputable organisations and institutes • D4-C4. Serve as both researchers and as PR or Gov't relations professionals

The second major contribution of this study is the use of the taxonomy to compare how the tobacco and alcohol industries have used CPA consultants. This thesis applied the proposed model to the alcohol industry context in response to the question How has the alcohol industry in Australia used expert consultants as Informational CPA agents? The data suggests there are strong similarities between the tobacco industry and Woolworths – the largest entity in the Australian retail liquor industry – in terms of how they have used expert consultants as CPA agents.

The third major contribution of this study is to regulatory and management studies. The results and discussion of this study make a reasonable case for drawing a diagnostic link between CPA consultants and CPA theory, the “Force of New Ideas”, performativity, and nodal governance theory. This responds to Research Question A of this project: How and why do risky product industries use expert consultants as Informational CPA agents? These theory- driven explanations also make clear that the use of expert consultants is not about sharing information to achieve mutual understanding of a firm or industry’s views; nor are they used in the disinterested pursuit of “truth” on a commercially contentious policy topic. This appears to be a calculated, strategic and expensive communicative activity that these companies engage in to create a favourable policy environment for their market operations. Regulatory and management studies should examine industry consultants’ contributions to risk and policy discourse more critically.

7.3 Areas for further research

Future research could explore the effectiveness of expert consultants as CPA agents, and the effectiveness of strategies that modulate the influence of CPA consultants. The scope of this thesis focused on producing research that serves both a “contextual” and “diagnostic” purpose. This research project does not appraise the effectiveness of the phenomena under

© Copyright by Lisa Margaret Buffinton 2019 | All Rights Reserved 177 Lisa Margaret Buffinton (ANU UID: U4699563) study, nor does it seek to identify strategies that may affect the phenomena under study [92, p. 307]. Future research could explore the effectiveness of expert consultants as CPA agents in terms of their impact on regulatory outcomes and could explore strategies that may affect the impacts that CPA agents may or may not have on regulatory outcomes. Such strategies may seek to modulate the influence of CPA consultants in regulatory and policy-making proceedings.

Future research could apply the taxonomy proposed in this study to a larger sample of alcohol industry data. It would beneficial to test whether the results of this study can be replicated in cases concerning CPA consultants used by Woolworths’ competitors (e.g. Coles, Aldi), or across the alcohol industry (including producers) more broadly and, potentially, globally. Such research may elicit commonalities and differences between firms, to develop a more generalisable understanding of this industry at large and its use of CPA consultants.

Future research could also apply the taxonomy proposed in this study to other risky product industries. As discussed in the discussion chapter, two such industries that may come to use (or may be already using) CPA consultants are the e-cigarette and recreational cannabis industries. Such research may identify commonalities and differences between the tobacco, alcohol and other industries, to develop a more generalisable theory of how and why risky product industries use CPA consultants.

Future research into CPA – particularly from the field of Management Studies – should engage more critically with normative considerations of CPA and firms’ social responsibilities as politically active and influential entities. Presently, CPA research from the Management Studies field does not engage with this question in-depth. More research into firms’ social responsibilities as political entities may prompt discussion and reflection on the part of scholars and practitioners of business administration and government relations.

7.4 Chapter 7 references

33. Bero, L. A. (2005). Tobacco industry manipulation of research. Public Health Reports, 120(2), pp. 200-208. 74. Jernigan, D. H. (2012). Global alcohol producers, science, and policy: The case of the international center for alcohol policies. American Journal of Public Health, 102, pp. 80-89. doi:10.2105/AJPH.2011.300269 90. White, J., & Bero, L. A. (2010). Corporate Manipulation of Research: Strategies Are Similar across Five Industries. Stanford Law & Policy Review, 21(105), p. 133.

91. Savell, E., Fooks, G., & Gilmore, A. B. (2016). How does the alcohol industry attempt to influence marketing regulations? A systematic review. Addiction, 111(1), pp. 18-32. doi:10.1111/add.13048 92. Ritchie, J., & Spencer, L. (2002). Qualitative data analysis for applied policy research. Chapter 12 in A. M. Huberman & M. B. Miles (Eds.), The Qualitative Researchers’ Companion (pp. 305- 329). Thousand Oaks, CA: SAGE.

8 Appendix

8.1 Taxonomy Development data sample attributes

Table 12: Bibliographic list of papers included in Taxonomy Development data sample. 5 84 96 86 114 Total(n) referencesin Bibliography 2 69 81 78 10 references(n) Industry sourceIndustry InternalTobacco studied 1983-1997 1991-1998 1987-2004 1950-1998 1972-2003 Timeframes Central & Central & Context (Denmark, Finland, Finland, (Denmark, (Australia, Hong Kong, (Australia, China, Hong Kong,China, and Malaysia Chile, Venezuela, Argentina, Costa Rica, Guatemala, and Brazil Ecuador, Europe Switzerland, Norway, Kingdom, United Germany, Spain, France, Italy, Sweden); Greece, Belgium, Asia South Taiwan, Philippines, Malaysia, China, Korea, Singapore, Indonesia, Thailand); Japan, South America Costa Rica, (Guatemala, Brazil, Ecuador, Venezuela, Argentina) Chile, Global Global Switzerland; Citedreference

Assunta, M., Fields, N., Knight, J., Chapman, S.,J., Assunta,and feeding’’: Assunta, & Knight, (2004).M. N., M., Fields, Care tobacco smoke programme. Asian environmental consultants the Tobacco13, Control, 4–12. https://doi.org/10.1136/tc.2003.005199 of regulation S. preventing (2002). in Tobacco success industry Glantz, & J., Barnoya, Tobacco11(4), Control, 305–314. Project”. “Latin the America: secondhand smoke Latin in https://doi.org/10.1136/tc.11.4.305 S. tobaccoA. consultants ETS industry’s (2005).worldwide Glantz, The & J., Barnoya, 16(1), Health, of and Asian components. European Public Journal project: European 69–77. https://doi.org/10.1093/eurpub/cki044 200–208. 120(April), A. of L. (2005).Bero, Tobacco IndustryResearch, Manipulation https://doi.org/10.1016/j.phr.2004.04.016 tobacco the with (2005).M. Author's Links reply: and McKee, J-C, P.A., Rielle, Diethelm, 365(9455), 211; industry. 211-2.Lancet, reply author https://doi.org/S0140- 6736(05)17730-7 [pii]\r10.1016/S0140-6736(05)17730-7

Lisa Margaret Buffinton (ANU UID: U4699563)

188

181

125

162

N/A

Total(n)

referencesin

Bibliography

119

113

N/A

references(n)

Industry sourceIndustry

InternalTobacco

studied

1991-2001

1987-2002

1969-1990

1999-2014

1992-1998

1999-2002

1985-2002

1975-2002

1987-2004

1985-1995

Timeframes

Context

North America North

Thailand

United States of America United

South Korea; East AsiaSouth Korea;

Global

Finland/Europe

Germany

Global

Global; North America North Global;

Citedreference

Perspectives, 113(12), 1659–1665.Perspectives, https://doi.org/10.1289/ehp.7452

regulations: Case studies from tobacco industry archives. Environmental Health Health studies from Case Environmental regulations: tobacco archives. industry

McDaniel, P. A., Solomon, tobacco R. and industry pesticide McDaniel, E. (2005). Malone, The & G.,

1737–1748. https://doi.org/10.1371/journal.pmed.0050238

scientists and the Chulabhorn Research Institute, Bangkok. PLoS Medicine, 5(12), Bangkok. PLoS Medicine, Institute, Research Chulabhorn and the scientists

MacKenzie, R., & Collin, J. (2008). “A good personal scientific relationship”: Philip morris Philip (2008). J. “A relationship”: goodR., Collin, & scientific personal MacKenzie,

15: 323-332.

years of industry strategies to undermine airline smoking restrictions'. Tobacco Control. smoking restrictions'. airline of toyears undermine strategies industry

Lopipero, Peggy Ann, and Bero, Lisa A. (2006). 'Tobacco interests or the public interest: 20 interest: public or the Lopipero,A. Peggy (2006). Lisa Ann,interests 'Tobacco and Bero,

49(1), 23–34. https://doi.org/10.3961/jpmph.15.063

scientists during tobacco litigation. Journal of Preventive Medicine and Public Health, Health, and Public Medicine of Preventive Journal tobacco during litigation. scientists

Lee, S. (2016). The tobacco industry’s abuse of scientific evidence and activities to recruit to recruit and activities evidence S.tobacco industry’s (2016).abuse of The Lee, scientific

Science. 14 August. 281:Science. 895-896.

Kaiser, Jocelyn. (1998). Science and Ethics: Tobacco Consultants Find Letters Lucrative. Lucrative. Find Letters Tobacco Consultants and Ethics: (1998). Science Jocelyn. Kaiser,

hype? Tobacco13(4), Control, 447–453. https://doi.org/10.1136/tc.2003.006676

Hirschhorn, N. (2004). Corporate social responsibility and the tobacco industry: hope and the orresponsibility (2004). N. social Corporate Hirschhorn,

Tobacco Control, Tobacco12(4), Control, 414–423. https://doi.org/10.1136/tc.12.4.414

Hiilamo, H. (2003). Tobacco industry strategy to undermine tobacco control in Finland. Finland. Hiilamo, H.tobacco in (2003). control Tobaccoto strategy industry undermine

https://doi.org/10.2105/AJPH.2004.061507

scientists in Germany. American Journal of Public Health, 96(1), 20–32. Health, of Public Journal American Germany. in scientists

Grüning, T., Gilmore, A. B., & McKee, M. (2006). Tobacco industry influence on science and on science (2006).M. Tobacco influence industry A. McKee, & B., Gilmore, T., Grüning,

10.1016/S0140-6736(05)17990-2 [doi]

tobacco industry. Lancet, 365(9461),tobacco 804–809. industry. Lancet, https://doi.org/S0140673605179902 [pii];

research published in the journal Indoor and Built Environment and associations with the the and associations with Environment Indoor journal and Built the published in research

Garne, D., Watson, tobacco F. smoke M., Chapman,(2005).Garne, S., Environmental Byrne, &

https://doi.org/10.1136/jech.55.8.588

Journal of EpidemiologyJournal 55(8),and 588–594.Community Health, knowledge of environmental tobacco smoke: a review of internal industry documents.industry tobacco of smoke: ofknowledge internal environmental review a Drope, J., & Chapman, S. (2001). Tobacco industry efforts at discrediting scientific Drope, Chapman, S. & J., (2001). scientific Tobacco effortsindustry discrediting at

8.2 Comparing case results and regulator consideration of original research and consultant critiques of original research

Table 13: Case A - Regulator consideration of original research transmitted by Sandra Jones in their report, and consultant critiques of this report transmitted by Adrian Furnham and David Hanson via Woolworths’ lawyer, Tony Schwartz.

Case A (Advertising) Regulator's final decision No further action Reason given by decision-maker Director General: '“Not satisfied that case made out that likely to encourage misuse or abuse of liquor. Evidence of redemption does not support risk group redemption nor distinguish this activity from other marketing forms. The shopper dockets are issued by a company not governed by the licensing regime. Could not control issuing, only redemption. Action would make one offs incapable of marketing and promotional offers from a very wide range of businesses and business models. Misuse and abuse not linked to shopper docket in the analysis in direct way.” (doc #45) Decision-maker cites 'original' research No to support decision? Decision-maker cites Consultant No response to 'original' research to support decision? Decision-maker conclusion agrees with No 'original' research? Decision-maker conclusion agrees with Agrees with the core arguments on causality: "Misuse and abuse Consultant view of 'original' research? not linked to shopper docket in the analysis in direct way.” (doc #45) Decision maker's opinion of Critiqued Director general: 'Not satisfied that case made out that likely to research encourage misuse or abuse of liquor. Evidence of redemption does not support risk group redemption nor distinguish this activity from other marketing forms....Misuse and abuse not linked to shopper docket in the analysis in direct way' could be referring to Prof. S. Jones' report, but could also be referring to analyses by OLGR staff that were submitted to Director General. Decision maker's opinion of None given. Consultants research Other factors potentially influencing Threat of legal action against regulator - competition policy. decision

Table 14: Case B - Regulator consideration of original research transmitted by Chris Morrison and Karen Smith in their report, and consultant critiques of this report transmitted by John Henstridge via Woolworths’ lawyer, Tony Schwartz.

Case B (Licence - Parkes) Regulator's final decision Application for packaged liquor licence refused. Reason given by decision-maker …noting the scale, trading hours and location of the business, the Authority is satisfied that over time the business will contribute, along with the incumbent licensed premises supplying liquor to the local community, to the current challenges faced by this local community, particularly in respect of alcohol related domestic and non-domestic violence'. p.15 Decision-maker cites 'original' research No to support decision? Decision-maker cites Consultant No response to 'original' research to support decision? Decision-maker conclusion agrees with Yes 'original' research? Decision-maker conclusion agrees with No Consultant view of 'original' research? Decision maker's opinion of Critiqued None given. research Decision maker's opinion of Consultants None given. research Other factors potentially influencing Prevailing alcohol harm rates in the locality were deemed to be decision a point of concern.

Table 15: Case C - Regulator consideration of original research transmitted by BOCSAR in their report, and consultant critiques of this report transmitted by John Henstridge via Woolworths’ lawyer, Tony Schwartz.

Case C1 (Licence- Minto) Case C2 (Licence- Petersham) Case C3 (Licence- Haymarket) Regulator's final Application for packaged liquor licence refused. Application for packaged liquor licence granted Application for packaged liquor decision licence removal from Pyrmont to Haymarket granted Reason given by the Authority is satisfied that there remains real The Authority accepts that the Applicant and its consultants Information unavailable decision-maker cause for concern as to the contribution that this may take a different view to the appropriate methodology proposed new business may make to prevailing used to identify an association between outlet density and adverse liquor related crime or anti-social social harms. The Authority has not put the Applicant's conduct in the local and broader community... critique to BOCSAR for a reply, and has not needed to do so The Authority’s concerns as to the role played by because this decision does not turn on competing views liquor consumed in the home is further about the impact of the broader research upon an underscored by the Police submission indicating assessment of this Application. (p.29) 'Nevertheless, on the that although crime has been decreasing in material before it... the Authority is satisfied that the overall some categories most of the alcohol related social impact of granting this Application for a packaged incidents in which Police became involved liquor licence will not be detrimental to the well-being of the concerned liquor that was last consumed in local or broader community'. (p.32 of decision letter) private residences'. p.23 of decision letter Decision-maker Yes (p.21-22 of decision letter) Alluded to: 'The Authority notes, from the research noted in Information unavailable cites 'original' Authority Guideline 6 (reinforced by the recent BOCSAR research to support report of December 2014) that was put to the Applicant for decision? comment) that there is an association between liquor outlet density and rates of domestic violence'. (p.29 of decision letter) Decision-maker No mention of DAA (Henstridge) report, but No Information unavailable cites Consultant mention of social impact consultants’ comments response to on 'some recent progress towards suburban 'original' research to renewal within [the suburb of] Minto' (p.23 of support decision? decision letter) Decision-maker Yes (p.21-22 of decision letter) Yes Information unavailable conclusion agrees with 'original' research?

Case C1 (Licence- Minto) Case C2 (Licence- Petersham) Case C3 (Licence- Haymarket) Decision-maker No No Information unavailable conclusion agrees with Consultant view of 'original' research? Decision maker's None given. The Authority accepts that this association [between liquor Information unavailable opinion of Critiqued outlet density and rates of domestic violence] has been research demonstrated by credible research performed (in this instance) by the State's pre-eminent agency for the collation and analysis of crime data. Unlike the Applicant and commercial objectors, BOCSAR are disinterested in the outcome of this Application' (p.29 of decision letter) Decision maker's None given. Unlike the Applicant and commercial objectors, BOCSAR are Information unavailable opinion of disinterested in the outcome of this Application. (p.29 of Consultants decision letter) research Other factors Prevailing alcohol harm rates in the locality were "the found (albeit modest) positive community benefits"; the Information unavailable potentially deemed to be a point of concern. "prevailing community circumstances and other factors that influencing decision constrain or minimise the extent of contribution to negative impacts that this business may be expected to make in these communities" (p.32) - that is: "in light of the above mentioned findings on prevailing licence density, crime data and socio demographic data for the local and broader community, those two adverse risk factors do not, int his case, provide a sufficient cause for concern to warrant refusal of the Application (p.31) "the applicant has implemented comprehensive and well developed harm minimisation measures that work effectively at other locations." and "[applicant's] staff can adequately constrain the extent of adverse impact arising from the abuse of liquor sold at the Premises" and "offering to conduct the liquor licence in accordance with its detailed plan of management - thus making compliance with the plan of management mandatory and enforceable under the act" (p.31)

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