Amicus curiae briefs

The Consortium’s most substantial technical assistance is the preparation of amicus curiae, or friend of the court, briefs in tobacco-related legal cases of national importance.

We prepared and filed or joined in several amicus briefs in key tobacco cases before the appellate courts of many states, as well as the U.S. Supreme Court, U.S. Courts of Appeals, and the U.S. District Court for the District of Columbia.  These cases have included challenges to laws that preempt local smoke-free ordinances or preempt state regulation of tobacco distribution.  Among the national organizations joining our briefs have been the American Medical Association, the National Association of County and City Health Officials, the National Association of Local Boards of Health, Americans for Nonsmokers’ Rights, and the Campaign for Tobacco-free Kids.  Many state associations have joined our briefs as well, such as the Washington State Medical Association, the Kentucky Medical Association, the Montana Hospital Association, the Montana Public Health Association, the League of California Cities, and the California State Association of Counties.

23-34 94th St. Grocery Corp. v N.Y.C. Board of Health (U.S. Ct. of Appeals for 2d Cir. 2011)

Whether Congress’s intent in enacting the Federal Cigarette Labeling and Advertising Act’s preemption provision was to protect tobacco companies from “diverse, nonuniform, and confusing cigarette labeling and advertising regulations,” rather than to bar public health messaging that does not place any requirements on tobacco companies.

Issue

Whether Congress’s intent in enacting the Federal Cigarette Labeling and Advertising Act’s preemption provision was to protect tobacco companies from “diverse, nonuniform, and confusing cigarette labeling and advertising regulations,” rather than to bar public health messaging that does not place any requirements on tobacco companies.

Overview

In December 2010, a federal judge struck down a New York City law requiring convenience stores and other tobacco retailers to post by cash registers vivid visual warning signs, such as diseased lungs, brains and teeth, to discourage consumers from purchasing cigarettes.  The judge wrote that under the Federal Cigarette Labeling and Advertising Act, only the federal government has the legal authority to regulate the advertising or promotion of cigarettes, and in his view, the signage at issue related to the promotion of cigarettes.  The health department disagreed with the judge’s interpretation of the federal law, and said the signs portray factual messages about the dangers of smoking and the importance of quitting. 

Amicus Brief

On April 15, 2011, the Tobacco Control Legal Consortium filed a motion at the U.S. Court of Appeals for the Second Circuit to submit an amicus curiae brief in support of New York City’s requirement that graphic warnings be posted in retail stores to warn consumers of the dangers of tobacco products.  Our brief argues that the Federal Cigarette Labeling and Advertising Act, which was amended in 2009 by the Family Smoking Prevention and Tobacco Control Act, does not preempt, or prohibit, the City from having such a requirement.Joining the Consortium on this brief were Action on Smoking and Health, the American Cancer Society, the American Lung Association in New York, the American Thoracic Society, Americans for Nonsmokers’ Rights, The Campaign for Tobacco-free Kids, the Framework Convention Alliance, the National Association of County and City Health Officials, and the National Association of Local Boards of Health.

Status

On July 10, 2012, the U.S. Court of Appeals for the Second Circuit affirmed the federal district court's decision invalidating the New York City law on the ground that it was preempted by federal labeling laws.  The city does not plan to appeal.

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23-34 94th St. Grocery Corp. v. N.Y.C. Board of Health (2010)

Whether New York City’s health regulation, Resolution § 181.19, requiring tobacco retailers to post factual health warnings where tobacco products are sold, is preempted by federal law, violates the free speech provisions of the federal and state constitutions, and exceeds the authority of the Board of Health under New York State Constitution’s separation of powers doctrine.

Issue

Whether New York City’s health regulation, Resolution § 181.19, requiring tobacco retailers to post factual health warnings where tobacco products are sold, is preempted by federal law, violates the free speech provisions of the federal and state constitutions, and exceeds the authority of the Board of Health under New York State Constitution’s separation of powers doctrine.

Overview

On September 22, 2009, the New York City Board of Health amended Article 181 of the City’s Health Code to require that “[a]ny person in the business of selling tobacco products face-to-face to consumers in New York City shall prominently display tobacco health warnings and smoking cessation signage produced by the Department [of Health].”  The City created signs displaying vivid images of diseased human lungs, brains and teeth, along with smoking cessation information, and required retailers to post these signs by cash registers to discourage consumers from purchasing cigarettes.  The nation’s three largest tobacco companies – Philip Morris, Lorillard and R.J. Reynolds – and the New York State Association of Convenience Stores sued the City’s health department, claiming the rule violated the First Amendment rights of retailers who disagreed with the message, and breached the Federal Cigarette Labeling and Advertising Act, which requires that only the federal government can regulate cigarette advertising and promotion.

On December 29, 2010, Judge Jed S. Rakoff of United States District Court in Manhattan struck down the New York law, in a ruling that focused on the preemptive power of the 1965 federal Labeling Act.  The judge said the law, although well-intentioned and aimed at addressing the “public health threat” of smoking, violated the Labeling Act’s provision forbidding any state laws from conflicting with the federal government’s policies on cigarette warnings and advertisements.  In the judge’s view, New York City’s graphic warning signs were related to the promotion of cigarettes, and since only the federal government has the legal authority to regulate the advertising or promotion of cigarettes, the law was invalid.  Because this finding resolved the case, the court did not address the First Amendment questions raised by the tobacco companies. 

Amicus Brief

On August 20, 2010, the American Legacy Foundation and twenty-four other nonprofit health organizations and advocacy groups, including the Tobacco Control Legal Consortium, filed an amicus brief in support of the New York City Board of Health.  We argue that the City’s health resolution is tailored to advance the City’s compelling interest in alerting consumers to the serious health dangers of tobacco use, and point out that the use of a graphic on anti-smoking signs significantly increases their effectiveness, the size of the signs is needed to achieve their purpose, the placement of the signs at the point of sale maximizes their effectiveness, the cessation information on the signs directly advances the resolution’s goals, and the plaintiffs’ proposed alternatives would not achieve the same level of success as the resolution’s anti-smoking signs.  We also contend that the health warnings required by Resolution § 181.19 do not involve compelled ideological speech. 

Status 

New York City’s lawyers say they plan to appeal the decision. The lawsuit is ongoing.

"DownloadDownload full Amicus Brief PDF

Altria Group, Inc., et. al. v. Good et. al., 129 S. Ct. 538 (2008)

Whether tobacco companies can be sued under state law for deceptive advertising of “light” cigarettes or whether federal law prohibits such lawsuits.

Supreme Court of the United States
Decided: December 15, 2008

Issue 

Whether tobacco companies can be sued under state law for deceptive advertising of “light” cigarettes or whether federal law prohibits such lawsuits.

Overview

The plaintiffs in this class action smoked “light” cigarettes manufactured by Philip Morris for over 15 years.  They sued under Maine’s Unfair Trade Practices Act, claiming that the tobacco company fraudulently advertised Marlboro Lights as conveying less tar and nicotine than regular cigarettes. Philip Morris argued that they could not be sued under state law for deceptive advertising since the Federal Cigarette Labeling and Advertising Act prohibits such lawsuits. Under the federal law, states cannot impose requirements or prohibitions based on smoking and health on the advertising or promotion of cigarettes. The defendants also argued that plaintiffs’ state law unfair trade practices claims conflicted with the Federal Trade Commission’s regulatory approach as to “light” and “low tar” cigarettes, and thus were impliedly preempted as well. At issue was whether this federal law shields Philip Morris from liability for representing that Marlboro Lights are lower in tar and nicotine than standard cigarettes and for using the “Lights” descriptor in its advertising.

The trial court held that the plaintiffs’ claims were preempted, but the U.S. Court of Appeals for the First Circuit reversed. The defendants appealed to the U.S. Supreme Court, which held, by split decision, that the state law had not been preempted.

This case is significant because it determined whether consumers can continue to sue the tobacco industry for any form of fraudulent misrepresentation and deceptive marketing, or whether federal law preempts state lawsuits and allows manufacturers to escape legal accountability.

Amicus Brief PDF, 178 Kb

On June 18, 2008, the Tobacco Control Legal Consortium filed an amicus brief supporting Good. We argued that based on legal precedent there was no merit to Altria’s radical claim that the Federal Cigarette Labeling and Advertising Act shields cigarette companies from fraud claims under state law. We pointed out that holding otherwise would “effectively insulate cigarette manufacturers from rules governing fraud, no matter how egregious the manufacturers’ false statements or fraudulent concealment.” Indeed, were Altria’s position correct, the states of the nation would have been unable to bring the largest lawsuits of all time: the states’ tobacco litigation of the 1990s, which lead to the historic tobacco settlements.

Our brief also debunked the tobacco industry’s theory that the Federal Trade Commission (FTC) has a “policy” authorizing the use of health descriptors like “light” and “low tar,” and that this federal policy preempts state lawsuits. We argued that this “implied preemption” claim is without basis since no such Federal Trade Commission “policy” exists, and we pointed out that finding FTC preemption in this case would seriously undermine the ability of states to enforce their own consumer protection and anti-fraud statutes.

The brief was written by Professor David Vladeck, Georgetown University Law Center on behalf of the Tobacco Control Legal Consortium, and was joined by AARP and Public Justice.

Outcome

The U.S. Supreme Court held that state law fraud claims relating to cigarette packaging and marketing are not preempted by federal law.  The Court upheld the rightof smokers to sue tobacco manufacturers for deceptive health claims, rejecting industry arguments that the Federal Cigarette Labeling and Advertising Act prevents consumers and state officials from suing manufacturers for fraudulent health claims.

This decision allowed other “light” cigarette fraud cases to be brought without risk of being preempted by federal law. Even after the U.S. Supreme Court ruling, the tobacco companies continued to fight these claims.

Read transcripts from this case PDF, 123 Kb

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American Cancer Society v. State of Montana, 103 P.3d 1085 (Mont. 2004)

Whether a Montana law barring smoke-free prohibitions in business establishments with permits for video gambling machines is valid under the Montana Constitution.

Supreme Court of the State of Montana
Decided: December 28, 2004

Issue

Whether a Montana law barring smoke-free prohibitions in business establishments with permits for video gambling machines is valid under the Montana Constitution.

Overview

In 2003,the Montana legislature passed a bill allowing “an establishment with video gambling machines on the premises [to be] exempt from any local government ordinance which is more restrictive than” the Montana Clean Indoor Air Act.  Several nonprofit organizations, including the Montana Medical Association, asked the Montana Supreme Court to declare the state law unconstitutional under provisions of the Montana Constitution, which states that all persons have the inalienable right to “a clean and healthful environment,” and that the state is to maintain and improve the environment.  The state of Montana asked whether this exemption expressly prohibited the ordinances passed by local government and argued that the Bill preempted city ordinances covering state licensed video gambling machines.

Amicus Brief PDF, 91 Kb

On December 3, 2003, the Tobacco Control Legal Consortium filed an amicus brief in support of the American Cancer Society, opposing the state law prohibiting smoke-free ordinances.  We argued that smoke-free ordinances are important to the health of the public and that tobacco control is most effective at the local level because it avoids state level politics and closely reflects community attitudes.    

Outcome

The Montana Supreme Court, in a split decision, held that the state law did not violate the local government sovereignty provision of the Montana Constitution.  The court ruled that the statute does not preempt self-governing entities’ no-smoking ordinances because the meaning of ‘exempt’ is not the same as ‘prohibit.’  “An exemption is an exception to, not a denial of the power to act.”

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American Meat Institute v. United States Department of Agriculture (U.S. District Ct., D.C. 2014)

What standard of First Amendment review applies to compelled disclosures of factual information that the government requires for reasons other than consumer deception?

Issue

What standard of First Amendment review applies to compelled disclosures of factual information that the government requires for reasons other than consumer deception?

Overview

Two panels of the DC Circuit in recent years (including one striking down new graphic warning labels on cigarette packages) have caused great concern by holding that rational basis review under Zauderer v. Office of Disciplinary Affairs applies to required factual disclosures (“Contains formaldehyde”; “Ingredients: Water, Sugar, …”; “May cause cancer in rats”) only when the purpose of the disclosure is to prevent consumer deception.  In all other instances, those panels would apply heightened (i.e., difficult to survive) review under the Central Hudson test.  The panel opinion here, however, disagreed, holding that other reasons (for example, in this case, permitting consumers to exercise a preference for American beef, or to act on their concerns about food safety abroad) are equally legitimate and should trigger no more than rational basis scrutiny.  The First and Second Circuits agree with the panel here; the earlier DC Circuit opinions were the first in the country to go the other way.  The Supreme Court has never decided the issue. Because of the split now present in the DC Circuit, the en banc court called for supplemental briefing about the applicable standard of First Amendment review. 

On April 21, the Tobacco Control Legal Consortium, joined by fifteen national public health, consumer advocate and environmental organizations, filed an amicus brief at the U.S. District Court, D.C., supporting the U.S.D.A. in this case. Our brief details the far-reaching potential consequences of narrowing the scope of Zauderer and explains the many important and heretofore uncontroversial regulations that could be threatened (such as tobacco product graphic warnings requirements, as well as any other disclosures of factual information for public health / consumer protection educational purposes)  It emphasizes how at odds the narrow reading of Zauderer is with the holdings of every other court to have considered the issue and with the reasoning of Zauderer itself.  It also specifically reviews the reasoning of the D.C. Circuit’s earlier holdings going the wrong way, challenging the misreadings in those cases of a number of Supreme Court precedents. 

Outcome

On July 29, 2014, the en banc U.S. Court of Appeals for the D.C. Circuit upheld the constitutionality of the U.S. Department of Agriculture’s rules requiring country-of-origin labeling on meat products.  The court held 9-2 that mandatory disclosures required for educational purposes should be evaluated under the test set forth by Zauderer v. Office of Disciplinary Counsel, rather than the more stringent test required under Central Hudson.

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Bartec, Inc. v. Theodore Wymsylo, Ohio Dep’t of Health, et al., Supreme Ct. of Ohio (2012)

Whether the Ohio Department of Health’s enforcement of Ohio’s Smoke Free Workplace Act violates separation of power principles, impedes property rights, and is a proper use of police powers, and whether the Court of Appeals was correct in ruling that it was improper for the appellants to use a declaratory judgment action in their counter-claims to collaterally attack the ten final orders finding violations.

Issue

Whether the Ohio Department of Health’s enforcement of Ohio’s Smoke Free Workplace Act violates separation of power principles, impedes property rights, and is a proper use of police powers, and whether the Court of Appeals was correct in ruling that it was improper for the appellants to use a declaratory judgment action in their counter-claims to collaterally attack the ten final orders finding violations.

Overview

On November 7, 2006, voters approved a ballot initiative to implement Ohio's Smoke Free Workplace Act, codified as R.C. Chapter 3794, which prohibits smoking in workplaces and other indoor places frequented by the public, with very few exceptions.  The law, which took effect December 7, 2006, handed enforcement authority to the state Department of Health, which, in turn, largely delegated that authority to county boards of health. On ten different occasions between 2007 and 2009, a Victorian Village bar named Zeno’s received citations for violating the law, and was fined $33,000. In 2010, a Franklin County Common Pleas Court judge found that a state inspector went too far when it cited Zeno's multiple times for allowing smoking without citing the bar’s smoking patrons who were also breaking the law.

On November 16, 2010, the Columbus-based 10th District Court of Appeals overturned this ruling, noting the lower court judge did not strike down any of the law as unconstitutional and pointing out that  Zeno's had the ability to challenge each citation via an administrative hearing but failed to do so. Zeno’s appealed on the ground that the Ohio Department of Health’s enforcement of the law was unconstitutional. On April 6, 2011, the Ohio Supreme Court agreed to hear the case.

Amicus Brief

On August 16, 2011, the Tobacco Control Legal Consortium joined fourteen other major public health and advocacy organizations, in submitting an amicus curiae brief in support of the Ohio Department of Health’s enforcement of Ohio’s Smoke Free Workplace Act.  Our brief argues that the Department’s enforcement of the Ohio smoke-free law is constitutional and a proper use of police power; that the Department of Health is uniquely situated to adopt regulations to protect its citizens from the devastating impact of secondhand smoke; and that the appellate court was correct in holding that the bar could not collaterally attack the ten final orders.  Joining the Consortium on this brief were the American Medical Association; the American Cancer Society Cancer Action Network; the American Heart Association, Great Rivers Affiliate; the American Lung Association of the Midland States; Americans for Nonsmokers’ Rights; the Campaign for Tobacco-free Kids; the Association of Ohio Health Commissioners, Inc.; and several other organizations.

Status

On May 23, 2012, the Ohio Supreme Court unanimously upheld Ohio’s Smoke-free Workplace Law, finding that the Act is a valid exercise of the state’s police power by Ohio voters and does not amount to a regulatory taking.

"DownloadDownload full Amicus Brief PDF

Beachfront Entertainment, Inc. v. Town of Sullivan’s Island, 666 S.E.2d 912 (S.C. 2008)

Whether state or federal law expressly or impliedly preempted a local smoke-free ordinance.

South Carolina Supreme Court
Decided: September 8, 2008

Issue

Whether state or federal law expressly or impliedly preempted a local smoke-free ordinance.

Overview

The Town of Sullivan’s Island, South Carolina, passed an ordinance that prohibited smoking in enclosed workplaces, including bars and restaurants. Beachfront Entertainment, a company that owns and operates bars and restaurants, sued the Town of Sullivan’s Island, alleging that various state and federal laws expressly or impliedly preempted the ordinance.  The trial court upheld the ordinance, but the case was appealed to the South Carolina Supreme Court.

The case was significant because it was one of two cases addressing the right of local authorities in South Carolina to enact indoor smoke-free laws, and the state Supreme Court’s ruling would affect smoke-free laws in many other South Carolina communities, including Charleston and Columbia, South Carolina’s two largest cities.

Amicus Brief PDF, 126 Kb

On November 9, 2007, the Tobacco Control Legal Consortium filed an amicus brief on behalf of Sullivan’s Island, arguing that the smoke-free ordinance is not only within the scope of the Town’s home rule authority, but is also consistent with other state law and is not preempted by state or federal law.

The brief was written by Julie Ralston-Aoki of the Tobacco Control Legal Consortium and Public Health Law Center, and was joined by twelve national public health organizations.

Outcome

On September 8, 2008, the South Carolina Supreme Court upheld the Town of Sullivan Island’s smoke-free ordinance, ruling that the ordinance was neither expressly nor impliedly preempted by state law, and that it was also not preempted by the federal Occupational Safety and Health Act. This significant South Carolina decision, in conjunction with a ruling in March 2008 on a similar preemption challenge to Greenville’s smoke-free ordinance, confirmed the right of local governments to pass laws prohibiting smoking inside public places.

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Bullitt County Fiscal Court et al. v. Bullitt County Board of Health (No. 2011-CA-001798-MR)

Whether Bullitt County Board of Health has the authority to promulgate a countywide smoke-free policy that regulates indoor smoking in public buildings, workplaces and other specified public areas.

Kentucky Court of Appeals

Decided:  Dec. 7, 2012

Issue

Whether Bullitt County Board of Health has the authority to promulgate a countywide smoke-free policy that regulates indoor smoking in public buildings, workplaces and other specified public areas.

Overview

In March 2011, the Bullitt County Fiscal Court and eight Bullitt County municipalities sued the Bullitt County Board of Health in Kentucky state court, challenging the local health board’s regulatory authority to pass a smoke-free policy prohibiting smoking in most public places and places of employment.  Despite the legal challenge, the county board of health voted to pass the regulation, and a few weeks later a group of businesses filed another lawsuit in federal district court, also claiming, among other things, that the board exceeded its statutory and regulatory authority in passing the smoke-free regulation.  In mid-September 2011, a Bullitt County circuit court judge ruled in favor of the plaintiffs in the state court case, concluding that board lacked the statutory and regulatory authority to adopt a smoke-free regulation and, thus, the regulation was null and void; and enjoining the board of health from enforcing the regulation. The Bullitt County Board of Health appealed.

Amicus Brief (2012)

In February 2012, the Tobacco Control Legal Consortium and the Kentucky Center for Smoke-free Policy recruited twelve nonprofit public health organizations to join an amicus brief supporting the Bullitt County Board of Health.  The brief argues that Bullitt County’s smoke-free Regulation 10-01 protects the public health and welfare of its citizens by decreasing the risk of death and disease arising from exposure to secondhand smoke in public places and places of employment, and that the regulation is well within the statutory authority delegated to Kentucky Boards of Health.

On December 7, 2012, the Kentucky Court of Appeals reversed the lower court decision and upheld the Board of Health’s regulation prohibiting smoking in most public places and places of employment.  The court ruled that local boards of health in Kentucky have broad authority to promulgate rules and regulations concerning public health as an authorized delegation of the state’s police power.

Amicus Brief (2013)

The plaintiffs appealed and the case is now before the Kentucky Supreme Court.  In December 2013, the Consortium, the Kentucky Center for Smoke-free Policy and fourteen other public health organizations submitted a second amicus brief, arguing again that Bullitt Count’s smoke-free regulation protects the public health and that the regulation is well within the statutory authority delegated to Kentucky boards of health.

Status

On June 19, 2014, the Kentucky Supreme Court unanimously ruled that the Bullitt County Board of Health exceeded its statutory authority in adopting the countywide smoke-free regulation and that the regulation was thus invalid.

"DownloadDownload full Amicus Brief PDF

Curtis v. Altria Group, Inc. and Philip Morris USA, Inc., No. 27-CV-01-18042 (2010)

Whether a private lawsuit alleging a consumer protection law violation by a tobacco manufacturer should be dismissed for lack of public benefit.  

Curtis v. Altria Group and Philip Morris USA, Inc., No. 27-CV-01-18042
Minnesota Court of Appeals
Pending

Issue

Whether a private lawsuit alleging a consumer protection law violation by a tobacco manufacturer should be dismissed for lack of public benefit.  

Overview

In November 2001, Marlboro Light smokers in Minnesota commenced a class action against Altria Group, Inc. and Philip Morris USA, Inc. alleging that the tobacco companies falsely and misleadingly represented “light” cigarettes as having lower tar and nicotine than regular cigarettes.  The plaintiffs claimed that the defendants deceptively marketed “light” cigarettes as a less harmful alternative to regular cigarettes, despite their knowledge that “light” cigarettes did not reduce exposure to tar and nicotine. 

On September 23, 2005, the defendants filed a Notice of Removal, claiming that the class action was subject to federal jurisdiction under the Federal Officer Removal Statute.  On October 17, 2007, following a Stay Order pending the outcome of a parallel case, the United States District Court of Minnesota granted the plaintiffs’ motion to remand to the Minnesota District Court of Hennepin County.

On October 14, 2009, the district court ruled in favor of Altria and Philip Morris. The court found that the class action conferred no public benefit, and that therefore, the plaintiffs were not entitled to recover under Minnesota consumer protection laws.  The court held that the action was barred by a settlement agreement between the State and Philip Morris in a 1998 suit. The plaintiffs appealed in May 2010, alleging that the action does confer public benefit and that under the principles of contract law, it cannot be bound to a settlement to which it was not party.
This case is of national significance because it could represent the first time that an appellate court has dismissed a lawsuit against a tobacco manufacturer on the grounds of lack of public benefit in a consumer protection action. 

http://publichealthlawcenter.org/sites/all/themes/phlc/img/phlc-document.pngAmicus Brief PDF, 107 Kb

In May of 2010, the Tobacco Control Legal Consortium filed an amicus brief in support of the plaintiffs. We argued that private lawsuits under Minnesota’s Unfair and Deceptive Acts and Practices laws further the public health mission of tobacco control and are critical in controlling the ongoing and pervasive fraudulent conduct of tobacco manufacturers.

The brief was written by law professor Prentiss Cox from the University of Minnesota Law School.

Outcome

On May 20, 2012, the Minnesota Supreme Court dismissed the class action, finding the case was barred by Minnesota's 1998 tobacco settlement.

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David Schuman v. Greenbelt Homes, Inc., No. 1538, Md. Ct. Spec. App. (2011)

Whether the Circuit Court erred (1) in denying Appellant’s motion for a preliminary injunction based on a finding that Appellant had only demonstrated that secondhand smoke, a known carcinogen, was an “offensive odor” and therefore not a nuisance; (2) in requiring “medical evidence demonstrating an unfavorable health condition” or “materially diminished property value” before determining the secondhand smoke to be a nuisance warranting the granting of a preliminary injunction; and (3) in applying the deferential “business judgment rule” in the context of a residential common interest community as opposed to the “reasonableness” standard.

 

Issue

Whether the Circuit Court erred (1) in denying Appellant’s motion for a preliminary injunction based on a finding that Appellant had only demonstrated that secondhand smoke, a known carcinogen, was an “offensive odor” and therefore not a nuisance; (2) in requiring “medical evidence demonstrating an unfavorable health condition” or “materially diminished property value” before determining the secondhand smoke to be a nuisance warranting the granting of a preliminary injunction; and (3) in applying the deferential “business judgment rule” in the context of a residential common interest community as opposed to the “reasonableness” standard.

Overview

The case involves a dispute about secondhand smoke between two neighbors living in adjoining townhouses.  Plaintiff Schuman, a nonsmoker, claims cigarette smoke from his neighbors’ premises migrates into his unit, constituting a nuisance at law, and obligating the management of their Cooperative to act, based on the terms of the mutual ownership contract governing their cooperative housing association.  At the Circuit Court hearing in 2010, the Cooperative argued that the “business judgment rule” prevents the court from interfering in the Cooperative’s internal affairs.  The court agreed with the Cooperative and denied the plaintiff’s request for a declaratory judgment that (1) the nuisance was prohibited by the mutual ownership contract and (2) the Cooperative should take steps to stop the smoking in or on the property.  The court also denied the plaintiff’s request for a preliminary injunction, which would grant relief for a nuisance.  The court said the plaintiff needed to demonstrate “real injury,” such as an “unfavorable health condition,” and that the plaintiff presented no evidence that “the nuisance did more than offend the senses.”  Although the plaintiff argued for judicial notice of the 2006 Surgeon General’s report and presented significant testimony from a national secondhand smoke expert, the court required expert medical testimony at trial on the harm caused by secondhand smoke.

Amicus Brief

On January 25, 2011, the Tobacco Control Legal Consortium filed an amicus brief with the Maryland Court of Special Appeals in support of Appellant David Schuman.Joining the Consortium were the American Cancer Society, the American Lung Association, Americans for Nonsmokers’ Rights, the Association for Nonsmokers – Minnesota the Campaign for Tobacco-Free Kids, the Maryland Group Against Smoker’s Pollution, Smokefree DC, the Smoke-Free Environments Law Project, and the Smoke-Free Housing Coalition of Maine.Our brief supports the appellant’s nuisance claim and focuses on several troubling areas in the court’s ruling, including its characterization of secondhand smoke as “an offensive odor,” rather than a severe health threat, and the perception that smoking outdoors eliminates the hazards from secondhand smoke exposure.

"DownloadDownload full Amicus Brief PDF

David Schuman v. Greenbelt Homes, Inc., No. 2020, Md. Ct. Spec. App. (2012)

Whether the Circuit Court erred (1) in denying Appellant’s motion for a preliminary injunction based on a finding that Appellant had only demonstrated that secondhand smoke, a known carcinogen, was an “offensive odor” and therefore not a nuisance; (2) in requiring “medical evidence demonstrating an unfavorable health condition” or “materially diminished property value” before determining the secondhand smoke to be a nuisance warranting the granting of a preliminary injunction; and (3) in applying the deferential “business judgment rule” in the context of a residential common interest community as opposed to the “reasonableness” standard.

Issue

Whether the Circuit Court erred (1) in denying Appellant’s motion for a preliminary injunction based on a finding that Appellant had only demonstrated that secondhand smoke, a known carcinogen, was an “offensive odor” and therefore not a nuisance; (2) in requiring “medical evidence demonstrating an unfavorable health condition” or “materially diminished property value” before determining the secondhand smoke to be a nuisance warranting the granting of a preliminary injunction; and (3) in applying the deferential “business judgment rule” in the context of a residential common interest community as opposed to the “reasonableness” standard.

Overview

The case involves a dispute about secondhand smoke between two neighbors living in adjoining townhouses.  Plaintiff Schuman, a nonsmoker, claims cigarette smoke from his neighbors’ premises migrates into his unit, constituting a nuisance at law, and obligating the management of their Cooperative to act, based on the terms of the mutual ownership contract governing their cooperative housing association.  At the Circuit Court hearing in 2010, the Cooperative argued that the “business judgment rule” prevents the court from interfering in the Cooperative’s internal affairs.  The court agreed with the Cooperative and denied the plaintiff’s request for a declaratory judgment that (1) the nuisance was prohibited by the mutual ownership contract and (2) the Cooperative should take steps to stop the smoking in or on the property.  The court also denied the plaintiff’s request for a preliminary injunction, which would grant relief for a nuisance.  The court said the plaintiff needed to demonstrate “real injury,” such as an “unfavorable health condition,” and that the plaintiff presented no evidence that “the nuisance did more than offend the senses.”  Although the plaintiff argued for judicial notice of the 2006 Surgeon General’s report and presented significant testimony from a national secondhand smoke expert, the court required expert medical testimony at trial on the harm caused by secondhand smoke.

On January 25, 2011, the Tobacco Control Legal Consortium filed an amicus brief with the Maryland Court of Special Appeals in support of Appellant David Schuman. (See separate entry, Schuman amicus brief 2011).  The Court denied permanent injunctive relief, finding that exposure to secondhand smoke is not considered an injury, despite taking judicial notice of the Surgeon General’s 2006 and 2010 reports describing in detail the adverse health effects of secondhand smoke. 

Amicus Brief

On January 25, 2012, the Consortium filed a second amicus brief arguing that the Circuit Court erred in denying the appellant’s request for permanent injunctive relief.  Joining the Consortium were the American Cancer Society Cancer Action Network, the American Lung Association, Americans for Nonsmokers’ Rights, the Association for Nonsmokers – Minnesota, the Maryland Group Against Smoker’s Pollution, Smokefree DC, and the Smoke-Free Housing Coalition of Maine. Our brief supports the appellant’s nuisance claim and focuses on several troubling areas in the court’s ruling, including its characterization of secondhand smoke as “an offensive odor,” rather than a severe health threat, and the perception that smoking outdoors eliminates the hazards from secondhand smoke exposure.

Status of Litigation

Ongoing.

"DownloadDownload full Amicus Brief PDF

Dayna Craft v. Philip Morris, 190 S.W.3d 368 (Mo. Ct. App. 2005)

Whether the members of a class of plaintiffs in a tobacco class action can be certified under the Merchandising Practice Act for making false advertising claims about the company’s “light” cigarettes.

Missouri Court of Appeals Eastern District
Issue Decided: August 16, 2005        

Issue

Whether the members of a class of plaintiffs in a tobacco class action can be certified under the Merchandising Practice Act for making false advertising claims about the company’s “light” cigarettes.

Overview

Dayna Craft, a Missouri smoker of Marlboro Lights, was the lead plaintiff in a class action under the Merchandising Practices Act that alleged the cigarette company made false claims about the health effects of light cigarettes. The plaintiffs claimed that Philip Morris falsely marketed “light” cigarettes as safer than full-flavored cigarettes, failed to instruct consumers on the correct way to smoke “light” cigarettes to receive lower amounts of tar and nicotine, and misrepresented the health problems associated with “light” cigarettes by failing to inform consumers that if smoked incorrectly, “light” cigarettes deliver amounts equal to or more than full-flavored cigarettes. 

The circuit court certified a class of plaintiffs, which was limited to those who had purchased light cigarettes in the five years before the date of the suit’s filing, Feb. 14, 2000.  Philip Morris appealed the class certification, arguing that the lead plaintiff was not an adequate representative of the class, that individual class members may have their own personal injury claims, which could create conflicts of interest, and that individual issues would outweigh common issues at trial.

Amicus Brief PDF, 55 Kb

On January 20, 2005, the Tobacco Control Legal Consortium filed an amicus brief in support of class certification in this case and arguing that Philip Morris’ interpretation would essentially eliminate the possibility of class actions under the Act, which would be an enormous advantage to tobacco companies.  We pointed out that class actions play an important role in allowing plaintiffs to bring cases to court that involve small money damages and would not be economically feasible to pursue individually. We argued that a class action is the only mechanism by which Plaintiffs would ever have the ability to present their case, much less obtain any relief. 

Outcome

On August 16, 2005, the Missouri Court of Appeals, Eastern District, dismissed Philip Morris’ argument and affirmed the trial court’s judgment certifying the “light” cigarette class. The court noted that "when one or more of the central issues in the action are common to the class and can be said to predominate, the case may properly proceed as a class action, even though other important matters will have to be tried separately.”  The Merchandising Practices Act required only that the allegations be based on how the cigarettes were labeled and the condition of the product, not individual smoking behavior.

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Discount Tobacco City & Lottery, Inc., et al. v. U.S. et al., 678 F.Supp.2d 512 (6th Cir. 2010)

Whether various provisions in the 2009 Family Smoking Prevention and Tobacco Control Act violate tobacco companies’ First Amendment rights to free speech and due process in their marketing efforts, and constitute an unconstitutional taking under the Fifth Amendment.

Issue

Whether various provisions in the 2009 Family Smoking Prevention and Tobacco Control Act violate tobacco companies’ First Amendment rights to free speech and due process in their marketing efforts, and constitute an unconstitutional taking under the Fifth Amendment.

Issues on Appeal 

Whether the District Court erroneously granted summary judgment on the following issues: (1) restrictions on tobacco advertising at point of sale and in magazines with high youth readership to black and white text only; (2) prohibiting the disclosure of tobacco products that are FDA- approved; (3) new mandated warnings on tobacco-product packaging and advertising; (4) restrictions on speech concerning modified risk tobacco products; and (5) marketing bans on brand-name sponsorships and merchandise, sample tobacco products, and continuity programs.

Overview

On June 22, 2009, President Obama signed into law the Family Smoking Prevention and Tobacco Control Act, which is designed to curb youth’s use of tobacco products and eliminate the tobacco industry’s use of deceptive marketing practices. On August 31, 2009, five tobacco companies and one retail chain sued the federal government, claiming the Family Smoking Prevention and Tobacco Control Act violated their rights to free speech and due process, and constituted an unconstitutional taking under the Fifth Amendment. Plaintiffs’ complaint was filed in the U.S. District Court, Western District of Kentucky and sought declaratory judgment and injunctive relief. 

Amicus Brief

On August 4, 2010, the Tobacco Control Legal Consortium filed an amicus brief in support of Defendant.  The brief argues that the marketing provisions of the Family Smoking Prevention and Tobacco Control Act should be upheld because the tobacco industry’s proven history of false and misleading speech directed to consumers justifies a heightened level of industry regulation by Congress, which poses no bar under the First Amendment.

The brief was written by Seth Mermin and Thomas Bennigson of the Public Good Law Center in California.

Status

As litigation of the Discount Brands case continues, the Food and Drug Administration has chosen not to enforce a component of the Family Smoking Prevention and Tobacco Control Act  requiring that manufacturers, distributors, and retailers use only black text on a white background for labeling or advertising (with certain exceptions). Section 1140.32(a).

"DownloadDownload full Amicus Brief PDF

Engle v. Liggett Group, 945 So.2d 1246 (Fla. 2006)

Whether a jury’s punitive damages award in a tobacco class action lawsuit was valid, when a ruling vacating the award relied on tobacco settlement agreements that barred their use in private lawsuits.

Supreme Court of Florida
Decided: December 21, 2006 (Revised the withdrawn opinion issued July 6, 2006)

Issue

Whether a jury’s punitive damages award in a tobacco class action lawsuit was valid, when a ruling vacating the award relied on tobacco settlement agreements that barred their use in private lawsuits.

Overview

In this landmark class action suit on behalf of 700,000 Florida smokers, the plaintiffs alleged fraud and conspiracy on the part of the tobacco companies to conceal the damaging effects of smoking.  The trial court found for the plaintiffs and awarded a record $145 billion punitive damages award against the principal domestic tobacco companies – the largest punitive damages award in history.  On appeal, however, the three-judge Third District Court of Appeals set aside the verdict and decertified the class, reversing its own earlier approval of certification.

Amicus Brief PDF, 75 Kb

In June 2004, the Tobacco Control Legal Consortium joined in an amicus brief prepared by its Massachusetts affiliate, the Tobacco Control Resource Center, in support of Plaintiffs.  The brief argued that the jury’s punitive damages award should be upheld because the Court of Appeals incorrectly relied on the 1997 Florida Settlement Agreement and the 1998 Master Settlement Agreement in reversing the jury’s award, when both agreements explicitly bar the use or consideration of them in any private lawsuit. We also argued that decertifying the class would create a de facto denial of remedies for almost all class members for two reasons: (1) the tobacco industry’s litigation tactics purposely and needlessly increase litigation costs in ways that effectively prevent individual smokers from litigating their claims, and (2) even if class members could find counsel to represent them, decertifying the class would lead to a flood of cases retrying the same liability issues and undermining judicial efficiency and resources.

Outcome

The Florida Supreme Court upheld the Court of Appeals’ reversal of the unprecedented punitive damages award and dismantled the class. The Court let the jury’s finding of fraud stand, but required Florida smokers to assert their claims individually, giving them one year to file new lawsuits. Importantly, however, the decision allowed the smokers’ claims already proven to be carried over to their individual cases, thus preserving most of the gains that had been made in the twelve years of Engle litigation. Claimants still bear the burden of proving that they smoked Defendant’s cigarettes, that the smoking caused their individual illnesses, and (if they allege fraud) that they personally relied on Defendant’s fraudulent claims.

More links

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Evans v. Lorillard (No. 2004-2840-B, 2011 WL 7860228 (Mass. Super. Sept. 6, 2011)

Whether Defendant Lorillard was denied a fair trial;  the trial court erred in denying Lorillard’s post-trial motions; and the award of compensatory and punitive damage was fair.

Issue

Whether Defendant Lorillard was denied a fair trial;  the trial court erred in denying Lorillard’s post-trial motions; and the award of compensatory and punitive damage was fair.

Overview

In 2004, Plaintiff Willie Evans, the executor of the estate of his mother, Marie Evans, alleged that Lorillard Tobacco Co., which distributed free Newport cigarettes to his mother and other children near a neighborhood playground, was grossly negligent in marketing its product to minors and engaged in a campaign to target them, among other claims. Marie Evans began smoking Lorillard's Newport brand in 1960 and died in 2002 from lung cancer. Plaintiff Evans sued for fraud and misrepresentation, breach of a voluntarily undertaken duty, breach of implied warranty, public nuisance, battery, violation of G.L. c. 93A, § 9, negligence, and wrongful death.

Following a 14-day jury trial in late 2010, the jury found for Plaintiff on each of the surviving claims and awarded $71 million in compensatory and $81 million in punitive damages. The court assessed prejudgment interest on both awards and, finding for Plaintiff on the Chapter 93A claim, awarded Plaintiff attorneys’ fees. In determining the Chapter 93A claim, the court, as an alternative basis, granted preclusive effect to the decision of the District Court in U.S. v. Philip Morris on certain factual findings.

Defendant Lorillard moved for judgment notwithstanding the verdict, a new trial, remittitur, and amendment of the Chapter 93A decision. The court granted the remittitur in part, reducing compensatory damages to $35 million, and denied all other post-trial motions. On June 8, 2012, Defendant Lorillard filed an appeal with the Supreme Judicial Court for the Commonwealth of Massachusetts.

Amicus Brief

On November 7, 2012, the Tobacco Control Legal Consortium submitted an amicus curiae brief urging the Supreme Judicial Court to affirm the trial court’s decision and uphold its grant of preclusive effect to the decision of the District Court in U.S. v. Philip Morris in support of the judgment in favor of the Plaintiff on his Chapter 93A complaint.  The Consortium argued that the Court’s exercise of its discretion to apply that case preclusively was correct under the criteria established by the Supreme Court.  Furthermore, the trial court judge was within the proper exercise of her discretion when she found that giving U.S. v. Philip Morris preclusive effect was fair to the defendant.

Status

On appeal, the Massachusetts Supreme Judicial Court vacated the jury's $81 million punitive damages award, while upholding the $35 million compensatory portion and statutory interest dating to the suit's 2004 filing.  On Oct. 23, 2013, Lorillard Tobacco Co. paid $79 million to settle the case, securing the dismissal of all claims from the estate of Marie Evans and averting a looming retrial on punitive damages.

"DownloadDownload full Amicus Brief PDF

Gate City Billiards Country Club v. Guilford County Department of Public Health, No. COA10-979, NC Ct. of Appeals (2010)

Whether the private club exemption in North Carolina’s statewide smoke-free legislation violates the Equal Protection Clause under the 14th Amendment of the U.S. Constitution.

Issue

Whether the private club exemption in North Carolina’s statewide smoke-free legislation violates the Equal Protection Clause under the 14th Amendment of the U.S. Constitution.

Overview

On January 2, 2010, North Carolina’s smoke-free law took effect, prohibiting smoking in nearly all public places, places of employment, and state government vehicles, including for profit clubs.  The law exempts non-profit private clubs.  The owner of Gate City Billiards filed suit against the law after the Guilford County Board of Health cited him for violating the smoke-free law and rejected the claim that the business was a private club exempt from the law.  The plaintiff claimed that the distinction between not-for-profit private clubs and for-profit clubs was not a fair way to classify exemptions from the law, and that it violated the Equal Protection Clause under the 14th Amendment.  In July 2010, a North Carolina district court judge rejected the plaintiff’s claim, and determined that the narrow private club exemption in the state’s smoke-free law was constitutional. Gate City Billiards appealed the decision to the North Carolina Court of Appeals. 

Amicus Brief

 

On December 8, 2010, the American Heart Association, American Lung Association, American Cancer Society, American Cancer Society Cancer Action Network, Americans for Nonsmokers’ Rights, Campaign for Tobacco-free Kids, and the Tobacco Control Legal Consortium filed an amicus curiae brief in support of Guilford County Department of Public Health.  We argue that North Carolina’s smoke-free law (“An Act to Prohibit Smoking in Certain Public Places and Certain Places of Employment”) does not violate the Appellants’ equal protection rights under the 14th Amendment of the U.S. Constitution or the Law of the Land Clause under Article 1, section 19 of the North Carolina Constitution, and that the North Carolina Court of Appeals should affirm the decision of the Guilford County District Court and uphold the Act.  Our brief points out that equal protection challenges to smoke-free legislation enacted around the U.S. have consistently failed; that the incremental approach the general assembly adopted in exempting non-profit private clubs is rationally related to a legitimate governmental interest; and that both the private club exemption and the Act are constitutionally valid.  The brief also requests that if the Court finds an equal protection violation, it hold only the private club exemption unconstitutional while upholding the remainder of the statute to accomplish the General Assembly’s intent in protecting North Carolina residents from harmful secondhand smoke exposure.

Status

The lawsuit is ongoing.

"DownloadDownload full Amicus Brief PDF

In Re Simon II Litigation v. Philip Morris USA, Inc., 407 F.3d 125 (2nd Cir. 2003)

Whether a consolidated class action lawsuit comprised of injured smokers would violate the due process rights of persons excluded from the class, since it would deny them the right to seek future punitive damages.

United States Court of Appeals for the Second Circuit
Decided: May 6, 2005

Issue

Whether a consolidated class action lawsuit comprised of injured smokers would violate the due process rights of persons excluded from the class, since it would deny them the right to seek future punitive damages.

Overview

The plaintiff smokers in this class action originally sued the tobacco companies claiming fraudulent denial and concealment of the health risks of smoking, and seeking both compensatory and punitive damages (Simon I). New York Federal District Court Judge Weinstein ordered the suit consolidated into a single massive case of all potential punitive damage claims comprised of the millions of smokers who have been diagnosed with smoking-related diseases (Simon II). Smokers already pursuing legal cases around the country would have seen their claims for punitive damages transferred to the single massive case before Judge Weinstein, who would then have decided all issues related to punitive damages once and for all. The remaining portions of their cases, including their claims for medical bills, lost wages, pain and suffering and other compensation, would have remained in the courts of their home jurisdictions.

Amicus Brief PDF, 91 Kb

On May 30, 2003, the Tobacco Control Legal Consortium, the Tobacco Control Resource Center, and others filed an amicus brief to the court supporting neither party, and opposing the lower court’s decision establishing a single nationwide class action to resolve virtually all potential legal claims for punitive damages against tobacco manufacturers. We argued that although the decision does not violate the due process rights of tobacco companies, the ruling does violate the due process rights of persons improperly excluded from the class since it would deny them the right to seek punitive damages in the future.  This includes those who will develop tobacco related injuries after the class period and those whose personal injury claims are based on exposure to secondhand smoke. We also noted that often the punitive damage element of these claims provides the primary financial incentive for attorneys to accept these difficult cases.  Seven national public health organizations joined our brief.  The brief was joined by seven public health organizations and Dr. C. Everett Koop, the former Surgeon General of the United States

Outcome

The three-judge panel of the U.S. Court of Appeals for the Second Circuit vacated the District Court’s order and returned the case to the lower court, holding that the proposed class failed to satisfy the threshold requirements for certification. The court’s decision helped ensure the continued viability of litigation by injured smokers.

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Jerry Beeman and Pharmacy Services vs. Anthem Prescription Management (2013)

Whether the Free Speech Clause of the California Constitution extends so far into the ordinary business of government as to forbid regulation of basic economic activity whenever that activity happens to involve language or information, including the enactment of a statute that requires the gathering and mailing of unadorned statistical data. 

California Supreme Court

Issue

Whether the Free Speech Clause of the California Constitution extends so far into the ordinary business of government as to forbid regulation of basic economic activity whenever that activity happens to involve language or information, including the enactment of a statute that requires the gathering and mailing of unadorned statistical data.

Overview

A group of pharmacies in California filed a class action lawsuit in federal district court against prescription drug claims processors for failing to follow state law requiring them to disclose pharmacy data (and, in particular, prices charged to private customers) to third-party payers.  Third party payors, such as health insurance companies, reimburse California pharmacies after they fill customers’ prescriptions, and prescription Drug Claims Processors (also known as Pharmacy Benefit Managers), act as intermediaries between pharmacies and third-party payors in the reimbursement process.  The pharmacy benefit managers argued that the statute (Section 2527) compels speech in violation of the California Constitution, based in part on appellate state court opinions holding that the state law regulates noncommercial speech in violation of the state constitution, and that the statute thus fails under strict scrutiny.  The district court denied the motion of the pharmacy benefit managers for judgment on the pleadings, and they appealed.  In July 2011, the U.S. Court of Appeals for the Ninth Circuit held that the statute is lawful under the First Amendment.  The defendants appealed to the Supreme Court of California.   

Amicus Brief

On March 6, 2013, the Public Health Law Center, Public Good Law Center, Consumer Action, and Consumers for Auto Reliability and Safety filed an amicus brief in the Supreme Court of California, supporting the pharmacies.  The brief argues that the free speech clause does not provide heightened protection to the transfer of statistical data, that the conveyance of purely factual data is not subject to the federal Constitution’s limits on compulsion of speech, and that subjecting economic regulations like Section 2527 to heightened scrutiny under the First Amendment would endanger countless ordinary economic regulations that require the disclosure or transfer of information.

Status

The litigation is ongoing.

"DownloadDownload full Amicus Brief PDF

JTR Colebrook v. Town of Colebrook, 829 A.2d 1089 (N.H. 2003)

Whether a state law preempted a municipal smoke-free ordinance.

Supreme Court of New Hampshire
Decided: August 19, 2003     

Issue

Whether a state law preempted a municipal smoke-free ordinance.

Overview

The Town of Colebrook passed the "Environmental Tobacco Smoke Regulations for Restaurants" ordinance, prohibiting smoking in restaurants.  A restaurant challenged the smoke-free ordinance claiming that the State Indoor Smoking Act preempted the ordinance.

Amicus Brief PDF, 46 Kb

On May 19, 2003, the Tobacco Control Legal Consortium filed an amicus brief in support of the Town of Colebrook, arguing that the goals of the smoke-free ordinance were consistent with those of the State Indoor Smoking Act and that language in the state law disavowed any intent to preempt local action.  We argued that the legislative grants of authority to local towns and governments to provide for general safety include authority for a town to regulate secondhand smoke as a public safety measure and pointed out that the State Indoor Smoking Act included an anti-preemption clause to allow municipal regulations to restrict smoking on public safety grounds.

Outcome

On August 19, 2003, the Supreme Court of New Hampshire struck down the Town of Colebrook’s smoke-free ordinance, finding that the New Hampshire Indoor Smoking Act preempted it.  The court noted that the state law’s plain meaning included a comprehensive and detailed regulation of smoking in restaurants and only permitted additional municipal regulation for fire protection, safety and sanitation, not public health.  The court also said that the legislature could have explicitly authorized local governments to enact more stringent requirements, but chose not to do so.

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Lexington-Fayette County Food and Beverage Association v. Lexington-Fayette Urban County Government, 131 S.W.3d 745 (Ky. 2004)

Whether a county ordinance prohibiting smoking in most enclosed areas open to the public was valid.

Supreme Court of Kentucky
Decided: May 4, 2004

Issue

Whether a county ordinance prohibiting smoking in most enclosed areas open to the public was valid.

Overview

The County Council in Lexington-Fayette, Kentucky enacted a local ordinance prohibiting smoking in most retail buildings. The Food and Beverage Association, a nonprofit corporation whose members consisted largely of food and beverage sellers in Fayette County, claimed that state law preempted the ordinance and that parts of the ordinance were overly broad, unconstitutionally vague, and violated business owners’ rights to transact business. The trial court, on cross-motions for summary judgment, upheld the ordinance.  The case then bypassed the Kentucky Court of Appeals and was appealed directly to the Kentucky Supreme Court.

Amicus Brief PDF, 508 Kb

On January 23, 2004, the Tobacco Control Legal Consortium filed an amicus brief, arguing that state law did not preempt the smoke-free ordinance and that regulating smoking is within a local government’s police power to protect the public’s safety and health. We argued that the state legislature neither expressly nor impliedly preempted local governments from passing smoke-free ordinances, since state statutes do not address the issue of second-hand smoke.

Outcome

On May 4, 2004, the Kentucky Supreme Court held that the ordinance prohibiting the use of tobacco products in public places did not conflict with state law that the legislature neither expressly nor impliedly intended to preempt the local ordinance, and that it was within the County’s police power to enact the ordinance. The court also held that despite the term “smoking paraphernalia” being unconstitutionally vague, the ordinance could go into effect.

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Lorillard Tobacco Company v. American Legacy Foundation, 903 A.2d 728 (Del. 2006)

Whether an anti-tobacco advertising campaign vilified a tobacco company in violation of the terms of the tobacco Master Settlement Agreement.

Supreme Court of Delaware
Decided: July 17, 2006

Issue 

Whether an anti-tobacco advertising campaign vilified a tobacco company in violation of the terms of the tobacco Master Settlement Agreement.

Overview

As a result of the 1998 multimillion dollar Master Settlement Agreement (MSA) between the four major tobacco companies and state attorneys general, the tobacco companies agreed to fund a foundation to reduce youth tobacco usage. The American Legacy Foundation was formed pursuant to that agreement. Lorillard sued for breach of contract alleging that the counter-marketing advertisements run by Legacy violated the Master Settlement Agreement’s “vilification provision” that prohibits Legacy from vilifying or making personal attacks on any person, company, or governmental agency.  Many of the ads in the Foundation’s “truth” campaign used edgy tactics to impress young people with the health risks of smoking. At issue was the meaning of the terms “vilification” and “personal attack,” which are not defined in the MSA. The Delaware Chancery Court entered summary judgment in favor of the American Legacy Foundation, Lorillard appealed, and the Delaware Supreme Court affirmed.     

Amicus Brief PDF, 1.5 Mb

On February 10, 2006, the Tobacco Control Legal Consortium and nineteen other national public health and medical organizations filed an amicus brief in support of the American Legacy Foundation, discussing the importance of preventing children from using tobacco products and the significant role programs such as the Foundation have in that process. We argued that the truth campaign was well researched and designed to utilize methods proven successful in preventing youth smoking, and the campaign has yielded extraordinary results. 

Outcome

On July 17, 2006, the Delaware Supreme Court affirmed, concluded that although the advertisements expressly and impliedly referred to the tobacco companies, Lorillard’s appeal was without merit because the truth campaign’s advertisements did not satisfy the plain meaning of “vilification” or “personal attacks.”

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McLaughlin v. Philip Morris USA, Inc. (Philip Morris v. Schwab), 522 F.3d 215 (2nd Cir. 2008)

Whether civil racketeering claims of consumers of “light” cigarettes can serve as a basis for a nationwide class action lawsuit of “light” cigarette smokers.

United States Court of Appeals for the Second Circuit
Decided: April 3, 2008

Issue

Whether civil racketeering claims of consumers of “light” cigarettes can serve as a basis for a nationwide class action lawsuit of “light” cigarette smokers.

Overview

Plaintiffs sued Philip Morris and other tobacco companies under the Racketeer Influenced and Corrupt Organizations Act for falsely advertising the purported health benefits of “light” cigarettes and thus subjecting the plaintiffs to economic fraud. The plaintiffs alleged that the tobacco companies marketed light cigarettes as “lower risk,” even though the companies knew that smokers of “lights” would ultimately receive the same doses of tar and nicotine as smokers of regular cigarettes, either by inhaling more deeply or smoking more cigarettes to satisfy their cravings. The lawsuit did not seek damages for personal injuries, but rather sought damages for the monetary loss of consumers who received something other than what they thought they were buying when they purchased Defendants’ “light” cigarettes.

On September 25, 2006, Judge Jack Weinstein of the Eastern District of New York issued a 540-page opinion supporting his decision to allow class-action treatment of the plaintiffs’ claims. This would arguably have been the largest lawsuit of all time: an $800 billion “light cigarette” class-action lawsuit involving an estimated 60 million plaintiffs.

Amicus Briefs

The Tobacco Control Legal Consortium filed two amicus briefs against Philip Morris’ motion to decertify the class action. The first was on petition to the Court of Appeals to review the district court’s decision granting class certification. The second was on review by the Court of Appeals.

On Petition to Review PDF, 115 Kb

On October 20, 2006, the Tobacco Control Legal Consortium’s filed an amicus brief arguing that decertifying the class would create a de facto denial of remedies for victims of the ‘light’ cigarette marketing scheme, “allowing Defendants once again to escape responsibility for their conduct.”  We pointed out that the tobacco companies’ traditional scorched earth policy is designed to make tobacco litigation burdensome, time-consuming and costly, and prevent the industry from facing the consequences of their actions.

On Review PDF, 67 Kb

Our amicus brief, filed January 26, 2007, argued that decertifying the class action would prevent further examination of the “light” cigarette fraud, as well as a fair and balanced examination of the fraud.

Outcome

On April 4, 2008, the U.S. Court of Appeals for the Second Circuit overturned the ruling by U.S. District Judge Weinstein and decertified the class. The Court ruled that the plaintiffs could not be treated as a class because “[i]ndividualized proof is needed to overcome the possibility that a member of the purported class purchased Lights for some reason other than the belief that Lights were a healthier alternative.”

The decertification ruling meant that the case could not proceed as a class action on behalf of the large group of plaintiffs, and that claims would need to be pursued individually. While the Second Circuit’s decertification ruling was significant, it did not mean that other “light cigarette” class actions could not succeed, as they have elsewhere in the U.S.

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National Association of Tobacco Outlets v. City of Providence (U.S. Ct. of Appeals for the 1st Circuit) (2013)

Whether Providence’s Pricing Ordinance which regulates retailer use of discount tobacco coupons and multipack discounts in tobacco sales, infringes on freedom of speech rights guaranteed by the First Amendment.

Issue

Whether Providence’s Pricing Ordinance which regulates retailer use of discount tobacco coupons and multipack discounts in tobacco sales, infringes on freedom of speech rights guaranteed by the First Amendment.

Overview

On January 12, 2012, the mayor of the City of Providence, Rhode Island, signed into law a Flavored Tobacco Ordinance, which prohibits the sale of flavored non-cigarette tobacco products, and a Tobacco Pricing Ordinance, which prohibits retail stores from selling multipack tobacco products, offering certain pricing discounts for tobacco products and redeeming tobacco product coupons.  In mid-February, the National Association of Tobacco Outlets and a group of tobacco manufacturers brought suit against the City of Providence, challenging the constitutionality of both ordinances on preemption and First Amendment grounds.

Amicus Brief (2013)

On June 15, 2012, the Tobacco Control Legal Consortium filed an amicus brief at the U.S. District Court for the District of Rhode Island, supporting Providence in a legal challenge to the city’s tobacco pricing ordinance.  (See separate entry, NATO v Providence amicus brief 2012).  On December 10, 2012, the U.S. District Court for the District of Rhode Island dismissed the industry’s complaint and upheld the constitutionality of the flavored tobacco and pricing/discount ordinances.  The tobacco industry appealed the district court’s decision.  On June 4, 2013, the Consortium submitted an amicus brief to the U.S. Court of Appeals for the First Circuit, arguing that the law restricting coupon redemption and multi-pack sales of tobacco does not violate the First Amendment and that the appeals court should affirm the lower court’s ruling and uphold the tobacco pricing ordinance. The Consortium’s brief was written by Ted Mermin and Tom Bennigson of Public Good Law Center.

Status

On September 30, 2013, the U.S. Court of Appeals for the First Circuit unanimously affirmed the district court’s ruling.


"DownloadDownload full Amicus Brief PDF

National Association of Tobacco Outlets v. City of Providence (U.S. District Ct. for District of R.I. 2012)

Whether Providence’s Pricing Ordinance which regulates retailer use of discount tobacco coupons and multipack discounts in tobacco sales, infringes on freedom of speech rights guaranteed by the First Amendment.

Issue

Whether Providence’s Pricing Ordinance which regulates retailer use of discount tobacco coupons and multipack discounts in tobacco sales, infringes on freedom of speech rights guaranteed by the First Amendment.

Overview

On January 12, the mayor of the City of Providence, Rhode Island, signed into law a Flavored Tobacco Ordinance, which prohibits the sale of flavored non-cigarette tobacco products, and a Tobacco Pricing Ordinance, which prohibits retail stores from selling multipack tobacco products, offering certain pricing discounts for tobacco products and redeeming tobacco product coupons.  In mid-February, the National Association of Tobacco Outlets and a group of tobacco manufacturers brought suit against the City of Providence, challenging the constitutionality of both ordinances on preemption and First Amendment grounds.

Amicus Brief

On June 15, 2012, the Tobacco Control Legal Consortium filed an amicus brief at the U.S. District Court for the District of Rhode Island, supporting Providence in a legal challenge to the city’s tobacco pricing ordinance.  In the Consortium’s brief, we argue that the law does not implicate the First Amendment.  “Far from representing a government assault on free expression, the [Pricing] Ordinance simply helps to prevent retailers from providing cigarettes and other tobacco products at prices likely to attract and addict youth.  It thus closely resembles minimum price laws, which have not been considered constitutionally problematic for 75 years.” Our brief points out that that even if the court were to examine the ordinance as an incidental restriction on protected speech, the ordinance would still pass constitutional muster.  The Consortium’s brief was written by Ted Mermin and Tom Bennigson of Public Good Law Center.

Status

On December 10, 2012, the U.S. District Court for the District of Rhode Island dismissed the industry’s complaint and upheld the constitutionality of the flavored tobacco and pricing/discount ordinances.  The tobacco industry appealed the district court’s decision.  On September 30, 2013, the U.S. Court of Appeals for the First Circuit unanimously affirmed the district court’s ruling.

"DownloadDownload full Amicus Brief PDF

National Association of Tobacco Outlets, Inc., et al., v. City of New York (U.S. District Ct., So. District of N.Y. 2014)

Whether New York City’s law prohibiting tobacco product price discounts violates the First Amendment and is preempted by federal law.

Issue

Whether New York City’s law prohibiting tobacco product price discounts violates the First Amendment and is preempted by federal law.

Overview

In 2013, New York City passed an ordinance (Local Law 1021-A-2013) that sets a minimum price of $10.50 for every pack of cigarettes sold in the city and that prohibits the use of coupons or other promotional discounts to lower that price, both for cigarettes and for other tobacco products.  In January 2014, tobacco companies and three trade groups challenged the ordinance on First Amendment and preemption grounds, and moved for a preliminary injunction.  

Amicus Brief

On March 3, 2014, the Tobacco Control Legal Consortium and eleven other national, state and local public health and medical organizations filed an amicus brief, urging the U.S. District Court, Southern District of New York, to uphold New York City’s ordinance and allow its implementation. The brief, which focuses on the public health rationale for the ordinance, points out that numerous scientific studies and public health authorities have concluded that raising the price of tobacco products will reduce smoking among the young.  The brief argues that tobacco companies have developed sophisticated marketing techniques specifically designed to counter the effect of higher cigarette prices on their sales and that imposing high excise taxes on cigarettes and prohibiting discounting are effective tobacco control strategies.  Finally, the brief contends that the plaintiffs’ arguments denying the effect of coupon redemption on youth smoking are without merit, given national data that reveals the extent to which adolescents are targeted to receive tobacco coupons on a regular basis – and should be evaluated in light of the tobacco industry’s “long history of marketing to children.”

Status

In June 2014, the U.S. District Court for the Southern District of New York upheld the law.  The court said that the ordinance regulates an economic transaction (the sale of tobacco products below the listed price), and does not restrict the dissemination of product pricing information or the distribution of tobaco products.  Thus, the court held that the law was constitutional and granted the city's motion for summary judgment.

"DownloadDownload full Amicus Brief PDF

People of the State of California, ex rel. Bill Lockyer v. R.J. Reynolds Tobacco, Co., 124 P.3d 408 (Cal. 2005)

Whether distributing free cigarette samples in a private booth on public grounds violated a California statute, whether federal law preempted the statute, and whether a fine against the tobacco company of almost $15 million was reasonable.

Supreme Court of the State of California
Decided:  December 22, 2005

Issue

Whether distributing free cigarette samples in a private booth on public grounds violated a California statute, whether federal law preempted the statute, and whether a fine against the tobacco company of almost $15 million was reasonable.

Overview

The state of California sued R.J. Reynolds for distributing free cigarette samples at public events, including festivals and stock car races, claiming that the tobacco company violated a state law prohibiting the free distribution of cigarettes, except at private functions where minors are denied access.  At issue was whether the Federal Cigarette Labeling and Advertising Act (FCLAA) preempted California law from imposing any “requirement or prohibition based on smoking and health” regarding the advertising and promotion of cigarettes.  R.J. Reynolds argued that handing out free cigarettes is a promotional activity that cannot be regulated by state law, since the federal government has exclusive authority to regulate tobacco advertising and promotions.

The trial court found that R.J. Reynolds violated a California statute, which prohibits the distribution of free cigarettes on public grounds, and fined the company almost $15 million.  R.J. Reynolds appealed.  This case was significant because it helped articulate the limitations of preemption with the FCLAA and provided a precedent for other states and localities facing challenges to similar laws.

Amicus Brief PDF, 99 Kb

The Tobacco Control Legal Consortium’s amicus brief supported the state of California, arguing that R.J. Reynolds’ overly broad interpretation of promotion was contrary to settled Supreme Court precedent, Congressional intent, and the well-established presumption against preemption as to traditional state regulation of health and safety.  We argued that under this interpretation, “promotion” would encompass virtually all areas of traditional state and local regulation of tobacco.

Outcome

On Dec. 22, 2005, the California Supreme Court reversed and remanded, holding that the distribution of cigarettes violated that statutory ban and that federal law did not preempt state law.  The court rejected R.J. Reynolds’ expansive interpretation of the preemption language contained in the FCLAA.  It noted that states retain the authority to regulate cigarette sales (as opposed to promotions), and that "in terms of smoking's adverse effect on health, there is very little distinction between the sale of cigarettes at full retail price, the sale of cigarettes at discounted prices, and the free distribution of cigarettes − all place cigarettes in the hands of the public."  The Supreme Court did, however, direct the trial court to reconsider the $14.8 million fine against R.J. Reynolds for its distribution of free cigarettes and make further findings on whether the civil penalty assessed against R.J. Reynolds was “grossly disproportional” to its violation. On May 8, 2006, the parties reached a settlement for $5 million ($1 million to the Public Health Institute, a $3.1 million civil penalty, and $900,000 to cover the Attorney General’s cost and fees.)

Audio Recording: http://www.courtinfo.ca.gov/courts/supreme/audio-arch.htm

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Philip Morris USA v. City and County of San Francisco, 345 Fed. Appx. 276 (9th cir. 2009)

Whether a city and county ordinance prohibiting the sale of tobacco products in stand-alone pharmacies is valid.

United States Court of Appeals for the Ninth Circuit

Issue

Whether a city and county ordinance prohibiting the sale of tobacco products in stand-alone pharmacies is valid.

Overview

San Francisco passed an ordinance prohibiting tobacco sales in the city’s nearly 60 drug stores, including large pharmacy chains such as Walgreens and Rite Aid, but not in supermarkets and big-box retailers with pharmacies. Philip Morris argued that the ordinance violated its freedom of speech by limiting its ability to communicate with customers. The city denied that the ordinance limits advertising and countered that it applies only to the sale of a product, which is conduct – not speech. This case is significant because the lawsuit involved the first U.S. law prohibiting the sale of tobacco products in pharmacies, and a decision favoring San Francisco could make it easier for other cities to pass similar laws prohibiting the sale of tobacco products in pharmacies. 

Amicus Brief PDF, 128 Kb

On March 24 2009, the Tobacco Control Legal Consortium filed an amicus brief in support of the City and County of San Francisco, arguing that the consensus of the public health community is that tobacco products should not be sold in pharmacies and that doing so conflicts with pharmacists’ code of ethics. We pointed out that the tobacco control movement has focused on changing social and cultural attitudes toward tobacco, including restricting the availability of tobacco, and that prohibiting pharmacies to sell tobacco is one reasonable step to achieve the ultimate goal of reducing and eliminating tobacco use. We also argued that the ordinance is well within San Francisco’s police power and is not a restriction on freedom of speech.

The brief was written by Linda Lye, Altshuler Berzon LLP in San Francisco and was joined by nineteen parties, including national medical, public health and pharmaceutical organizations, as well as California health organizations, leading groups from Massachusetts concerned about Boston’s new pharmacy ban, and several professors at the University of California at San Francisco, School of Pharmacy.

Outcome

On October 15, 2009, the U.S. District Court for the Northern District of California dismissed the case, at the request of both the tobacco company and the City of San Francisco.  The ordinance, which took effect October 1, 2009, was the first of its kind in the nation.  On Sept. 9, 2009, the Ninth U.S. Circuit Court of Appeals ruled unanimously that the city’s ban does not restrict freedom of expression, as Philip Morris argued.  In affirming the federal district court’s denial of an injunction against the ordinance, the court wrote “Plaintiff’s advertising speech is protected activity.  Selling cigarettes isn’t.”

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Philip Morris USA v. Mayola Williams, 549 U.S. 346 (2007)

Whether in reviewing a jury’s award of punitive damages, an appellate court’s conclusion that a defendant’s conduct was highly reprehensible can ever create a situation where a greater than single digit ratio of punitive to compensatory damages is constitutionally permissible. 

Supreme Court of the United States
Decided: February 20, 2007

Issue

Whether in reviewing a jury’s award of punitive damages, an appellate court’s conclusion that a defendant’s conduct was highly reprehensible can ever create a situation where a greater than single digit ratio of punitive to compensatory damages is constitutionally permissible.     

Overview

Mayola Williams, widow of a long-time Oregon smoker named Jesse Williams, who died of lung cancer, sued Philip Morris USA for fraud based on advertisements and sponsored studies that made cigarettes appear to be less dangerous than they were.  In 1999, a jury awarded Mayola Williams compensatory damages of $821,000 and $79.5 million in punitive damages for Philip Morris’ conduct.  The trial court found the compensatory damages exceeded the state cap and reduced them to $521,485.50, and found the punitive damages “grossly excessive” and reduced them to $32 million.  The Oregon Court of Appeals reversed and reinstated the $79.5 million judgment, after examining the reprehensibility of Philip Morris’ actions, the length of its misinformation campaign and the number of people it had reached.  The Oregon Supreme Court denied review.  The U.S. Supreme Court granted certiorari, vacated the Court of Appeals’ judgment and remanded the case to the Court of Appeals for that court to reconsider the amount of the punitive damages award.  Again, the Court of Appeals reinstated the $79.5 million judgment, and this time the Supreme Court of Oregon affirmed, likening the conduct of the defendants to “extraordinarily reprehensible” behavior comparable to manslaughter under Oregon law. 

Philip Morris petitioned the U.S. Supreme Court again and the Court struck down the punitive damages award, ruling that the jury may have improperly punished Philip Morris for harm it inflicted on smokers who were not parties to the litigation.  The Court held that the due process clause of the Fourteenth Amendment bars punitive damages for harm caused to individuals not involved in the litigation.  It ordered the Oregon Supreme Court to reconsider the award and to make sure that, in calculating the punitive damages, jurors had not considered harm to any smokers other than the parties involved in the suit.  The Court did not discuss the amount awarded in punitive damages, explaining that the amount might change once the Oregon Supreme Court reevaluated it.

On remand, the Oregon Supreme Court sustained the $79.5 million award on different grounds, ruling that there were independent state law reasons for reaffirming the award since Philip Morris had failed to raise timely objections to the trial judge’s ruling on its suggested jury instructions.  Philip Morris promptly petitioned the Supreme Court again, claiming that the state court had not raised this point in the previous proceedings and was attempting to evade the Supreme Court’s instructions. On June 9, 2008, the Supreme Court agreed to hear the case for an extraordinary third time.

Amicus Briefs

During this nine-year saga, the Tobacco Control Legal Consortium filed two amicus briefs in the U.S. Supreme Court, both supporting the Oregon jury’s original verdict.

Amicus Brief (2006) PDF, 131 Kb

On September 15, 2006, the Tobacco Control Legal Consortium and our affiliate legal center, the Tobacco Control Resource Center, filed an amicus brief on behalf of the widow, the jury and the Oregon courts. We argued that justice requires higher punitive damages against companies that use “scorched earth” tactics as a way of ensuring that few of their victims ever have a day in court, and a high ratio of punitive to compensatory damages is justified in this case.

Amicus Brief (2008) PDF, 161 Kb

On October 9, 2008, the Tobacco Control Legal Consortium, its Massachusetts affiliate, the Tobacco Control Resource Center, and several other parties, filed a second amicus brief, arguing that Philip Morris is not a victim in need of the court’s protection.

“Petitioner is no litigation novice, humbly begging a second chance after its first brush with an unfamiliar system has gone awry. Petitioner has an active legal history of exploiting litigation cost and delay as a bludgeon to punish and deter plaintiffs in smokers’ actions like this one.”

Outcome

On April 1, 2009, after initially agreeing to hear Philip Morris’ appeal, the U.S. Supreme Court issued a one-sentence order, stating that the Court’s acceptance of the Philip Morris appeal was “improvidently granted. The Supreme Court’s refusal to hear the appeal meant that the Court let stand one of history’s largest awards for punitive damages involving an individual plaintiff against the tobacco industry.  By this time, the original 1999 jury award of $79.5 million had risen to approximately $145 million with interest. The large punitive damages award in the nine-year Williams case is significant because it resulted from a ruling that allowed tobacco companies to be held responsible not only for their fraudulent advertising but also for their reprehensible misconduct.

Listen to oral arguments (transcript included)

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Philip Morris USA v. Mayola Williams, 556 U.S. ___ (2009)

Whether a state court has inherent authority over its own procedural rules.

Supreme Court of the United States
Decided: March 31, 2009

Issue

Whether a state court has inherent authority over its own procedural rules.

Overview

Mayola Williams, widow of a long-time Oregon smoker named Jesse Williams, who died of lung cancer, sued Philip Morris USA for fraud based on advertisements and sponsored studies that made cigarettes appear to be less dangerous than they were.  In 1999, a jury awarded Mayola Williams compensatory damages of $821,000 and $79.5 million in punitive damages for Philip Morris’ conduct.  The trial court found the compensatory damages exceeded the state cap and reduced them to $521,485.50, and found the punitive damages “grossly excessive” and reduced them to $32 million.  The Oregon Court of Appeals reversed and reinstated the $79.5 million judgment, after examining the reprehensibility of Philip Morris’ actions, the length of its misinformation campaign and the number of people it had reached.  The Oregon Supreme Court denied review.  The U.S. Supreme Court granted certiorari, vacated the Court of Appeals’ judgment and remanded the case to the Court of Appeals for that court to reconsider the amount of the punitive damages award.  Again, the Court of Appeals reinstated the $79.5 million judgment, and this time the Supreme Court of Oregon affirmed, likening the conduct of the defendants to “extraordinarily reprehensible” behavior comparable to manslaughter under Oregon law. 

Philip Morris petitioned the U.S. Supreme Court again and the Court struck down the punitive damages award, ruling that the jury may have improperly punished Philip Morris for harm it inflicted on smokers who were not parties to the litigation.  The Court held that the due process clause of the Fourteenth Amendment bars punitive damages for harm caused to individuals not involved in the litigation.  It ordered the Oregon Supreme Court to reconsider the award and to make sure that, in calculating the punitive damages, jurors had not considered harm to any smokers other than the parties involved in the suit.  The Court did not discuss the amount awarded in punitive damages, explaining that the amount might change once the Oregon Supreme Court reevaluated it.

On remand, the Oregon Supreme Court sustained the $79.5 million award on different grounds, ruling that there were independent state law reasons for reaffirming the award since Philip Morris had failed to raise timely objections to the trial judge’s ruling on its suggested jury instructions.  Philip Morris promptly petitioned the Supreme Court again, claiming that the state court had not raised this point in the previous proceedings and was attempting to evade the Supreme Court’s instructions. On June 9, 2008, the Supreme Court agreed to hear the case for an extraordinary third time.

Amicus Briefs

During this nine-year saga, the Tobacco Control Legal Consortium filed two amicus briefs in the U.S. Supreme Court, both supporting the Oregon jury’s original verdict.

Amicus Brief (2006) PDF, 131 Kb

On September 15, 2006, the Tobacco Control Legal Consortium and our affiliate legal center, the Tobacco Control Resource Center, filed an amicus brief on behalf of the widow, the jury and the Oregon courts. We argued that justice requires higher punitive damages against companies that use “scorched earth” tactics as a way of ensuring that few of their victims ever have a day in court, and a high ratio of punitive to compensatory damages is justified in this case.

Amicus Brief (2008) PDF, 161 Kb

On October 9, 2008, the Tobacco Control Legal Consortium, its Massachusetts affiliate, the Tobacco Control Resource Center, and several other parties, filed a second amicus brief, arguing that Philip Morris is not a victim in need of the court’s protection.

“Petitioner is no litigation novice, humbly begging a second chance after its first brush with an unfamiliar system has gone awry. Petitioner has an active legal history of exploiting litigation cost and delay as a bludgeon to punish and deter plaintiffs in smokers’ actions like this one.”

Outcome

On April 1, 2009, after initially agreeing to hear Philip Morris’ appeal, the U.S. Supreme Court issued a one-sentence order, stating that the Court’s acceptance of the Philip Morris appeal was “improvidently granted. The Supreme Court’s refusal to hear the appeal meant that the Court let stand one of history’s largest awards for punitive damages involving an individual plaintiff against the tobacco industry.  By this time, the original 1999 jury award of $79.5 million had risen to approximately $145 million with interest. The large punitive damages award in the nine-year Williams case is significant because it resulted from a ruling that allowed tobacco companies to be held responsible not only for their fraudulent advertising but also for their reprehensible misconduct.

Listen to oral arguments (transcript included)

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Price v. Philip Morris USA, 848 N.E.2d 1 (Ill. 2005)

Whether Philip Morris was federally authorized and thus immune from liability for deceptively advertising and selling its “light” cigarettes?

US Supreme Court denied petition for a writ of certiorari
Illinois Supreme Court Opinion
Decided: December 15, 2005

Issue

Whether Philip Morris was federally authorized and thus immune from liability for deceptively advertising and selling its “light” cigarettes?

Overview

This class action lawsuit was brought by lead plaintiff Sharon Price, who started smoking in 1966 and switched to Cambridge Lights in 1986.  Plaintiffs presented evidence that "light" or "low tar and nicotine" cigarettes promoted at that time were no safer than regular cigarettes and, in fact, could be more harmful -- and that the defendant tobacco company was aware of this.

The trial court found Philip Morris liable for fraudulently advertising “light” cigarettes as safer than full-flavored cigarettes and entered a judgment of approximately $10 billion against the tobacco company for its advertising and sale of Marlboro Lights and Cambridge Lights. The Illinois Supreme Court reversed the trial court judgment, holding that the Federal Trade Commission (FTC) specifically authorized all U.S. tobacco companies to use words like “low” or “light,” so long as they also clearly disclosed the tar and nicotine content in milligrams of the smoke produced by the advertised cigarette. The court also found that the FTC reiterated this authorization in its consent orders. The Illinois Supreme Court held that Philip Morris was authorized by the FTC to use the terms, and the claim was not barred by the Consumer Fraud Act. Plaintiffs appealed to the United States Supreme Court.

Amicus Brief PDF, 137 Kb

In October 2006, the Tobacco Control Legal Consortium and ten other national public health organizations filed an amicus brief in the U.S. Supreme Court, supporting Plaintiffs’ petition for writ of certiorari and arguing that the Illinois Supreme Court misapplied and misconstrued federal law. We argued that when the FTC decided in a consent order not to forbid certain conduct, it did not constitute authorization to engage in that conduct, nor did it bind or immunize non-parties.  We also argued that the Illinois Supreme Court decision threatened to hamper state efforts to curb deceptive advertising and threatened substantial interference with the FTC’s own regulatory efforts.

Outcome

On November 27, 2006, the U.S. Supreme Court denied the petition to hear the case. Thus, the Illinois Supreme Court decision in favor of Philip Morris stands.

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R.J. Reynolds Tobacco Co. v. U.S. Food and Drug Administration (2011)

Whether the district court was correct in granting a preliminary injunction against enforcement of graphic warnings on cigarette packages, required by the Family Smoking Prevention and Tobacco Control Act, which illustrate well-documented consequences of smoking in an easy-to-understand and memorable way, thus raising public awareness of the risks of smoking and promoting public health by reducing tobacco use.

Issue

Whether the district court was correct in granting a preliminary injunction against enforcement of graphic warnings on cigarette packages, required by the Family Smoking Prevention and Tobacco Control Act, which illustrate well-documented consequences of smoking in an easy-to-understand and memorable way, thus raising public awareness of the risks of smoking and promoting public health by reducing tobacco use.

Overview

On August 16, 2011, five tobacco companies (R.J. Reynolds, Lorillard, Commonwealth Brands, Liggett, and Santa Fe) filed a Complaint with the U.S. District Court for the District of Columbia, challenging the Food and Drug Administration (FDA)’s final rule announcing graphic warning requirements on cigarette packages and advertising, scheduled to go into effect in September 2012.  The companies opposed the FDA’s new warning label requirements on First Amendment grounds. 

On Nov. 7, U.S. District Judge Richard Leon sided with the tobacco company plaintiffs and granted their motion for a preliminary injunction – an order from the court putting the requirements on hold until there is a final judgment on the merits of the claims. The tobacco companies successfully argued that they were likely to prevail on their claim that the graphic warnings compelled them to “engage in anti-smoking advocacy” on behalf of the government, breaching their right to free speech.  The Department of Justice appealed Judge Leon's ruling to the U.S. Court of Appeals for the District of Columbia Circuit. 

Amicus Brief

On December 19, 2011, the Tobacco Control Legal Consortium joined eleven other major non-profit public health organizations, consumer advocacy groups, and physicians’ associations in submitting an amicus curiae brief to the D.C. Circuit in support of the graphic warning labels required by the Family Smoking Prevention and Tobacco Control Act (Act) and issued by the Food and Drug Administration.  Our brief argues that, in granting the injunction, the district court (1) ignored all the evidence on which Congress relied when it passed the Act; (2) gave no weight to Congress’s interest in ensuring that consumers are effectively informed about the health consequences and addictive impact of cigarettes; and (3) made no effort to examine the truthfulness of any of the specific images depicted on the warnings.

"DownloadDownload full Amicus Brief PDF

Roark & Hardee v. City of Austin, 522 F.3d 533 (5th Cir. 2008)

Whether implementation language in a local smoke-free ordinance was unconstitutionally vague.

United States Court of Appeals for the Fifth Circuit
Decided: March 27, 2008

Issue

Whether implementation language in a local smoke-free ordinance was unconstitutionally vague.

Overview

Several bars challenged Austin’s smoke-free ordinance that required operators of public places to take “necessary steps” to prevent another person from smoking in an enclosed area in a public place – a provision the challengers said was unconstitutionally vague. The ordinance set out certain steps such as posting “no smoking” signs and removing ashtrays. The district court found the provision unconstitutionally vague and permanently enjoined the City of Austin from enforcing it.

Amicus Brief PDF, 105 Kb

On March 8, 2007, the Tobacco Control Legal Consortium filed an amicus brief supporting the City of Austin, arguing that the U.S. District Court erred in October 2006 when it found that the term “necessary steps” was unconstitutionally vague for failing to spell out in detail the steps a business must take to implement the law. We argued that the permanent injunction should be reversed because of the need to hold accountable proprietors who fail to prevent smoking in public places.

Our brief was written by Cliff Douglas, Executive Director of the University of Michigan Tobacco Research Network, and was joined by five other national public health organizations.

Outcome

On March 27, 2008, the court upheld Austin’s smoke-free ordinance, finding it provided adequate notice of the actions it required operators of public places to take and an ascertainable standard of guilt for inspectors.  The court minced no words in rejecting the bar owners’ claim, noting pointedly that “[f]rom this evidence, we find it apparent that, most of the time, the only ‘steps’ taken were in trying to find a loop-hole to avoid enforcing the ordinance. Such behavior is a clear violation of the ‘necessary steps’ provision.”

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Rowe v. New Hampshire Motor Transport Association, 128 S.Ct. 989 (2008)

Whether a state was federally preempted from regulating the interstate sale of tobacco products via the Internet.

Supreme Court of the United States
Case Decided: February 20, 2008

Issue

 Whether a state was federally preempted from regulating the interstate sale of tobacco products via the Internet.

Overview

In 2003, the State of Maine passed a “tobacco delivery law” regulating the sale of tobacco products purchased through the Internet and by phone to ensure that these products did not reach minors and were not delivered by unlicensed tobacco retailers. The law allowed only Maine-licensed tobacco retailers to accept a tobacco delivery and required them to use a company that used recipient-verification delivery.  Several trade associations for delivery companies challenged the law, arguing that the Federal Aviation Administration Authorization Act (FAAAA) of 1994, which supports the free flow of interstate commerce, preempted the Maine law.

Amicus Briefs

The Tobacco Control Legal Consortium filed two amicus briefs on behalf of the Maine Attorney General, arguing that the FAAAA did not preempt the Maine Tobacco Delivery Law.  Both briefs were written by Kathleen Dachille, Director of the Legal Resource Center for Tobacco Regulation, Litigation and Advocacy at the University of Maryland School of Law.

Petition for writ of certiorari PDF, 123 Kb

In October 2006, the Tobacco Control Legal Consortium filed an amicus brief in the U.S. Supreme Court supporting the State of Maine’s petition for certiorari. We argued that the First Circuit’s decision unreasonably restricted Maine and other states from regulating direct Internet or phone sales of tobacco and controlling youth access to tobacco.  Our brief was joined by three national public health organizations.

Brief to U.S. Supreme Court PDF, 246 Kb

On August 23, 2007, the Tobacco Control Legal Consortium filed an amicus brief in the U.S. Supreme Court on behalf of Maine, arguing that Maine’s tobacco delivery law is a legitimate exercise of the state’s public health police powers and a necessary response to Congress’s call to reduce youth access to tobacco. We argued that the increase in teen Internet use and the number of online tobacco retailers has made it difficult for the state to prevent youth access to tobacco, and states have the obligation and power to regulate tobacco even when sales are over the Internet.  Our brief was joined by nine national public health and advocacy organizations.

Outcome

On February 20, 2008, the U.S. Supreme Court unanimously overturned the State of Maine’s attempt to control the online sales of cigarettes by regulating the delivery of tobacco products.  It affirmed the lower court’s decision in favor of New Hampshire Motor Transport, ruling that state laws in this area are preempted by federal interstate trucking laws.

Read transcripts from this case

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Tacoma-Pierce County Board of Health and Tacoma-Pierce County Health Department v. Entertainment Industry Coalition, 105 P.3d 985 (Wash. 2005)

Whether a local ordinance prohibiting smoking in most indoor public places was preempted by a state “clean indoor air” statute.

Washington Supreme Court
Decided: February 10, 2005

Issue

Whether a local ordinance prohibiting smoking in most indoor public places was preempted by a state “clean indoor air” statute.

Overview

The Tacoma-Pierce County Board of Health and Tacoma-Pierce County Health Department passed a smoke-free resolution covering most indoor public places, including places of employment.  The Entertainment Industry Coalition (EIC), a lobbying organization that represents gambling interests, challenged the smoke-free resolution, claiming it was preempted by Washington’s Clean Indoor Air Act, and was thus invalid.  The trial court enjoined the County from enforcing the smoke-free resolution, and the County appealed directly to the Washington Supreme Court.

Amicus Brief PDF, 97 Kb

In September 2004, the Tobacco Control Legal Consortium and six other national public health organizations filed an amicus curiae brief in support of Tacoma-Pierce County. Our brief defended the power of local officials in Washington to restrict smoking and argued that an ambiguous state law does not preempt local health officials from acting to protect public health.

Outcome

The Washington Supreme Court affirmed the lower court’s decision, holding that Washington’s Clean Indoor Air Act allows business proprietors to designate public smoking areas.  The County’s smoke-free resolution, by purportedly denying such a right, conflicted with state law and was thus invalid.

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United States (and Tobacco-Free Kids Action Fund) v. Philip Morris, 449 F.Supp.2d 1 (D.D.C. 2006)

Whether several major tobacco companies violated the Racketeer Influenced and Corrupt Organizations Act by engaging in a conspiracy to defraud the public about the health risks of smoking and to market tobacco products to children.

United States District Court for the District of Columbia
Decided: August 17, 2006

Issue

Whether several major tobacco companies violated the Racketeer Influenced and Corrupt Organizations Act by engaging in a conspiracy to defraud the public about the health risks of smoking and to market tobacco products to children.

Overview

In 1999, the United States Department of Justice (DOJ) sued several major tobacco companies for fraudulent and unlawful conduct and reimbursement of tobacco-related medical expenses.  The circuit court judge dismissed the DOJ’s claim for reimbursement, but allowed the DOJ to bring its claim under the Racketeer Influenced and Corrupt Organizations Act (RICO).  The DOJ then sued on the ground that the tobacco companies had engaged in a decades-long conspiracy to (1) mislead the public about the risks of smoking, (2) mislead the public about the danger of secondhand smoke; (3) misrepresent the addictiveness of nicotine, (4) manipulate the nicotine delivery of cigarettes, (5) deceptively market cigarettes characterized as “light” or “low tar,” while knowing that those cigarettes were at least as hazardous as full flavored cigarettes, (6) target the youth market; and (7) not produce safer cigarettes. 

In February 2005, the U.S. Court of Appeals for the D.C. Circuit ruled that disgorgement of illegal profits, a remedy aimed at past violations, is not a valid remedy since it does not prevent or restrain future RICO violations.  [http://www.tobaccofreekids.org/content/what_we_do/industry_watch/doj/Appeals020405.pdf]

In July 2005, the circuit court granted health group organizations, including the Tobacco-Free Kids Action Fund, motion to intervene in the lawsuit for the purpose of being heard on the issue of the permissible and appropriate remedies that the court should order. [http://www.tobaccofreekids.org/pressoffice/KesslerOpinion072205.pdf]

Amicus Brief for District Court PDF, 91 Kb

On February 4, 2005, the Tobacco Control Legal Consortium filed an amicus brief, recommending that the district court’s proposed remedies include enhanced provisions relating to document disclosure, prohibited practices, and corrective communications.

Amicus Brief for Court of Appeals PDF, 1.2 Mb

On November 26, 2007, the Tobacco Control Legal Consortium filed an amicus brief arguing that because Defendants’ commercial speech was false, misleading, and deceptive, it was not protected by the First Amendment. We explained that Defendants’ statements were not protected by the Noerr-Pennington Doctrine, a judge-made principle that provides First Amendment protection to the collective activities of companies when they join together to seek to influence government policies. Finally, we argued that Judge Kessler’s remedies, which included a campaign of corrective communications, were ordered to prevent future harm rather than correct the effects of past conduct and did not offend the First Amendment.

The brief was written by Professor David Vladeck, Georgetown University Law Center on behalf of the Tobacco Control Legal Consortium.

Outcome

On August 17, 2006 Judge Kessler issued a 1,683 page opinion holding the tobacco companies liable for violating RICO by fraudulently covering up the health risks associated with smoking and for marketing their products to children.

The tobacco companies filed an appeal to the U.S. Court of Appeals. The court granted the motion, and on May 22, 2009 the three-judge panel unanimously upheld Judge Kessler’s decision finding the tobacco companies liable. The court upheld most of the ordered remedies, but denied additional remedies sought by public health interveners and the Department of Justice.  The court also found that the First Amendment does not protect fraudulent statements, stating that “Defendants knew of their falsity at the time and made the statements with the intent to deceive. Thus, we are not dealing with accidental falsehoods, or sincere attempts to persuade.” The court dismissed the defendants’ argument that their statements were protected by the First Amendment.

More links

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United States (and Tobacco-Free Kids Action Fund) v. Philip Morris, 556 F.3d 1095 (D.C. Cir. 2009)

Whether several major tobacco companies violated the Racketeer Influenced and Corrupt Organizations Act by engaging in a conspiracy to defraud the public about the health risks of smoking and to market tobacco products to children.

United States Court of Appeals for the District of Columbia Circuit
Decided: May 22, 2009

Issue 

Whether several major tobacco companies violated the Racketeer Influenced and Corrupt Organizations Act by engaging in a conspiracy to defraud the public about the health risks of smoking and to market tobacco products to children.

Overview

In 1999, the United States Department of Justice (DOJ) sued several major tobacco companies for fraudulent and unlawful conduct and reimbursement of tobacco-related medical expenses.  The circuit court judge dismissed the DOJ’s claim for reimbursement, but allowed the DOJ to bring its claim under the Racketeer Influenced and Corrupt Organizations Act (RICO).  The DOJ then sued on the ground that the tobacco companies had engaged in a decades-long conspiracy to (1) mislead the public about the risks of smoking, (2) mislead the public about the danger of secondhand smoke; (3) misrepresent the addictiveness of nicotine, (4) manipulate the nicotine delivery of cigarettes, (5) deceptively market cigarettes characterized as “light” or “low tar,” while knowing that those cigarettes were at least as hazardous as full flavored cigarettes, (6) target the youth market; and (7) not produce safer cigarettes. 

In February 2005, the U.S. Court of Appeals for the D.C. Circuit ruled that disgorgement of illegal profits, a remedy aimed at past violations, is not a valid remedy since it does not prevent or restrain future RICO violations.  [http://www.tobaccofreekids.org/reports/doj/rulings/Appeals020405.pdf]

In July 2005, the circuit court granted health group organizations, including the Tobacco-Free Kids Action Fund, motion to intervene in the lawsuit for the purpose of being heard on the issue of the permissible and appropriate remedies that the court should order. [http://www.tobaccofreekids.org/pressoffice/KesslerOpinion072205.pdf]

Amicus Brief for District Court PDF, 91 Kb

On February 4, 2005, the Tobacco Control Legal Consortium filed an amicus brief, recommending that the district court’s proposed remedies include enhanced provisions relating to document disclosure, prohibited practices, and corrective communications.

Amicus Brief for Court of Appeals PDF, 1.2 Mb

On November 26, 2007, the Tobacco Control Legal Consortium filed an amicus brief arguing that because Defendants’ commercial speech was false, misleading, and deceptive, it was not protected by the First Amendment. We explained that Defendants’ statements were not protected by the Noerr-Pennington Doctrine, a judge-made principle that provides First Amendment protection to the collective activities of companies when they join together to seek to influence government policies. Finally, we argued that Judge Kessler’s remedies, which included a campaign of corrective communications, were ordered to prevent future harm rather than correct the effects of past conduct and did not offend the First Amendment.

The brief was written by Professor David Vladeck, Georgetown University Law Center on behalf of the Tobacco Control Legal Consortium.

Outcome

On August 17, 2006 Judge Kessler issued a 1,683 page opinion holding the tobacco companies liable for violating RICO by fraudulently covering up the health risks associated with smoking and for marketing their products to children.

The tobacco companies filed an appeal to the U.S. Court of Appeals. The court granted the motion, and on May 22, 2009 the three-judge panel unanimously upheld Judge Kessler’s decision finding the tobacco companies liable. The court upheld most of the ordered remedies, but denied additional remedies sought by public health interveners and the Department of Justice.  The court also found that the First Amendment does not protect fraudulent statements, stating that “Defendants knew of their falsity at the time and made the statements with the intent to deceive. Thus, we are not dealing with accidental falsehoods, or sincere attempts to persuade.” The court dismissed the defendants’ argument that their statements were protected by the First Amendment.

More links

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WTO Petition - Trade Dispute between Thailand and Philippines over Tobacco Taxes (2009)

Tobacco Law Center (former Public Health Law Center) petition to World Trade Organization to submit information in a legal dispute between Thailand and the Philippines regarding cigarette taxes.