Legal
State
New legal resources on FDA tobacco regulation from TCLC
On June 22, 2009, President Barack Obama signed into law the Family Smoking Prevention and Tobacco Control Act, giving the U.S. Food and Drug Administration (FDA) comprehensive authority to regulate the manufacturing, marketing, and sale of tobacco products. The Tobacco Control Legal Consortium (TCLC) has introduced two new series of fact sheets on the legislation:
- Federal Regulation of Tobacco Products: A Summary.
A series of fact sheets on key provisions of the new legislation.
- Federal Regulation of Tobacco Products: Impact on State and Local Authority.
A series of fact sheets on how the new federal law is likely to affect state and local governments.
In the coming months, the Consortium will be developing additional materials to address legal issues raised by the new legislation and to help state and local advocates and policymakers take full advantage of the new opportunities it creates. Click here to access the new fact sheets.
Arkansas wins antitrust ruling over tobacco fees (AR)
A Canadian cigarette company sued the State of Arkansas for requiring certain manufacturers that were not part of the 1998 Master Settlement Agreement to make payments into an escrow account to offset future Medicaid costs related to smoking. The state was accused of violating antitrust laws because the payments forced non-participating manufacturers to raise prices and prevented them from gaining a competitive advantage over manufacturers and wholesalers that were part of the settlement agreement. The court ruled that no antitrust laws have been violated, although the payments have increased the cost of doing business in the state. Read more about the ruling here.
Judges don’t buy theory in S.F. tobacco-ban case (CA)
A federal appeals court has decided to allow San Francisco to continue to enforce its ban on tobacco sales in drugstores, denying Philip Morris’s request for an injunction. An ordinance took effect in October 2008 that prohibits sales of cigarettes and other tobacco products at drugstores in San Francisco, but exempts certain retailers such as supermarkets and big-box retail stores with pharmacies. Arguing in favor of the injunction, a lawyer for Philip Morris stated that the ordinance has forced drugstores to ban advertising of tobacco products, thus interfering with the companies’ constitutional right to communicate with its customers. An appeal is pending that will determine whether it is legal for San Francisco to prohibit tobacco sales in pharmacies. Click here to read more about the battle between Phillip Morris and the city.
Smokers, tobacco both winners in early Engle cases (FL)
So far, there have been nine verdicts on a massive block of litigation known as “Engle progeny,” the offspring of a landmark 1994 class action lawsuit filed by Florida Doctor Howard Engle that produced a $145 billion judgment against cigarette makers six years later. Although some juries have placed some of the blame for smoking on the smokers, seven of the nine judgments have favored smokers and their families over the tobacco companies. Read more here. Related: Philip Morris to appeal $1.9 million award to widower of two-pack-a-day smoker In the latest Engle progeny case, a 92-year-old widower was awarded $1.93 million in compensation for the death of his wife, who died from smoking-related lung cancer. The tobacco company plans to appeal, claiming the verdict was “the result of a severely prejudicial trial plan.” Read more about the verdict and appeal here.
The gaming industry stacks the deck against smokefree workplaces in Indiana (IN)
A study commissioned by the Americans for Nonsmokers’ Rights Foundation revealed that the gaming industry in Indiana—Indiana’s casinos, horse tracks and the lobbyists who represent them—spends millions of dollars each year to influence legislation and the political process in Indiana. According to the report, gaming industry interests have used this clout to oppose and defeat statewide comprehensive smokefree workplace legislation that covers all workers, including the 17,000 casino employees in Indiana. Click here to read a press release on the report. Click here to read the full report.
Court reverses decision on tobacco settlement (MT)
The Montana Supreme Court has overturned a lower court’s decision that the state was not diligently enforcing parts of the state settlement agreement that deal with non-conforming companies. The lower court’s decision in favor of the tobacco companies would have forced the state into arbitration over the settlement. However, the Montana Supreme Court’s recent ruling in favor of the state attorney general’s office states that the tobacco companies need to prove in a Montana court that the state did not uphold terms of the settlement. Read more here.
Smoking-ban challenge in Nebraska still alive (NE)
An owner of a pool hall has filed a challenge against Nebraska’s state law banning smoking in public buildings and workplaces. The owner argues that the ban’s exemptions are arbitrary and amount to special legislation in violation of the Nebraska Constitution. The state smokefree law currently includes exemptions for some hotel rooms, tobacco-only retailers, private homes, and research facilities, and an exemption for cigar bars is set to go into effect on September 1. The judge has made no immediate ruling on the challenge to the smokefree law, and instead plans on deciding the case after receiving legal briefs from both sides. Click here to read more about the challenge.
New York wins round in fight against Indian tobacco vendors (NY)
A federal judge has issued an injunction that will prevent tobacco vendors on a Long Island, New York Indian reservation from selling untaxed cigarettes to the general public until a legal dispute between the reservation and the City of New York has been settled. In the pending case, the city alleges that vendors on the Poospatuck reservation have sold large quantities of untaxed cigarettes to the public, including bootleggers who resell the cigarettes in the city. The injunction is considered an early victory for the city. According to the Campaign for Tobacco-Free Kids (CTFK), this lawsuit is the first instance of a state or locality successfully using the federal Contraband Cigarette and Smokeless Tobacco Trafficking Act, which was amended in 2006, to allow for state and local enforcement to stop tax-evading cigarette sales and deliveries. Click here for more information. Click here to read a statement from CTFK.
Ohio judge rules tobacco settlement funds should be used as intended – to reduce tobacco use and save lives (OH)
An Ohio judge has ruled that Governor Ted Strickland and the Legislature acted illegally when they sought to use funds from a tobacco settlement to pay for an economic development plan. The judge ordered that the funds from the tobacco settlement must be used for their intended purpose: to fund programs to prevent kids from smoking and help smokers quit. The program funded by the settlement has proven to be effective, as smoking rates have decreased by 63.5% among middle school students and 42% among high school students since 2000. Click here to read more about the ruling. The governor plans to appeal the ruling. Click here to read about the appeal.
Oregon AG settlement blocks e-cigarette sales (OR)
At the end of July, Oregon banned the sale of electronic cigarettes at a pair of travel store chains in a move the state attorney general's office says makes the state the first to ban the products. Sales of Njoy brand e-cigarettes are prohibited until the brand is approved by the FDA or a court decision is reached on whether the FDA can regulate e-cigarettes. Read more here. Related: Attorneys General asked to ban all e-cigarette sales A statement from Action on Smoking and Health calls upon attorneys general in the other 49 states to follow Oregon’s lead and ban e-cigarette sales until the FDA has ascertained that the products are safe. Click here for more information.
Trial delayed in smoking ban dispute (SD)
The implementation of the smoking ban in South Dakota may be pushed back further by a delayed court date. This summer, the Secretary of State invalidated 9,000 signatures on a petition for a public vote on the ban, causing the petition to fall 221 signatures short of the number needed for a vote. The petitioners are taking legal action to put the issue on the ballot. The lawsuit was set to go to court on August 24, but the trial date has been pushed back to October 26. A hearing on September 11 will begin to resolve preliminary issues related to the lawsuit. Read more here. Click here for background information on the lawsuit. Related: Smoking ban case gets new judge At the request of the American Cancer Society, the judge originally appointed to the smoking ban lawsuit was replaced because of a conflict of interest; the original judge previously worked in the Attorney General’s office, and would have been defending the Secretary of State’s office in the case. Having succeeded with that request, the ACS is seeking to become formally involved in the lawsuit as a stakeholder in the smokefree law. Read more here.
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National
Smokeless "e-cigarette" makers and FDA in court today
Two e-cigarette distributors are challenging the U.S. Food and Drug Administration in federal court for confiscating product shipments from China. The federal district court will be asked to decide whether e-cigarettes should be classified as tobacco or as nicotine products. If they are classified as nicotine, then the FDA says they should be treated just like any smoking cessation aid and should be subject to federal regulation and testing. The manufacturers want the court to classify e-cigarettes as tobacco products so that the devices will be more loosely regulated. Read more here.
Altria, cigarette makers seek review on racketeering
Altria Group Inc. and other U.S. cigarette makers asked a federal appeals court to reconsider its ruling that the companies violated racketeering laws and barring them from marketing cigarettes as “light” or “low-tar.” The tobacco companies have argued that banning “light” and “low-tar” descriptors would cost the industry hundreds of millions of dollars. Additionally, it was argued in the papers filed for the appeal that legislation signed in June allowing the U.S. Food and Drug Administration to regulate the tobacco industry makes it unlikely that the industry would commit future violations. Click here to read more about the appeal. A spokesman for the U.S. Department of Justice has said that the DOJ will not file a request for a rehearing, which could increase the odds that the case will not be heard in appeals court, prompting the litigants to submit the case to the Supreme Court. Click here for more information.
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International
Psychiatric patients’ rights not violated by NHS ban on their smoking (U.K.)
An appeals court recently decided that a policy that prohibits smoking on the premises of a high security psychiatric hospital has not violated the patients’ human rights and that the policy is lawful. The claimants, a group of inpatients, had complained that the policy was discriminatory and that it was unlawful not to allow a permanent exemption for mental health units. The court stated that under the Health Act 2006, the hospital is considered a place of work and therefore must go smokefree, unless exempted by regulations. Read more about the policy here. Click here to read the appeals court decision.
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