Legal

State

S.F. ban on tobacco in drugstores survives (CA)
A federal appeals court rejected a free-speech argument by tobacco giant Philip Morris, and has ruled that San Francisco can enforce its ban on tobacco sales in drugstores. The court ruled that the city ordinance limits where cigarettes may be sold, but does not prevent the cigarette company from communicating with customers. A separate lawsuit, in which Walgreens claims that the ordinance discriminates against drugstores by allowing tobacco sales in other retail stores, is pending. Read more here.

State brief defends smoking ban (IA)
In Des Moines County, Iowa, Larry Duncan, a West Burlington bar owner, petitioned a judicial review against the constitutionality of the Iowa Smokefree Air Act, claiming that he was being denied equal protection under the state and federal constitutions. In response to Duncan’s consistent violation of the 2008 ban, the Alcoholic Beverage Division revoked the bar’s liquor license. The assistant attorney general, John Lundquist, argued that only in some cases are businesses and locations exempt from the smoking ban, but that Duncan’s bar and restaurant did not fall under this type of exemption. Duncan’s attorneys argued that the law violates interstate commerce, but Lundquist countered the argument by stating that the law does not regulate where or who can sell tobacco products. Click here for more information.

Much at stake in roll-your-own suit: N.H. contends tobacco shop threatens flow of $50m a year (NH)
The New Hampshire Attorney General has filed suit against a tobacco retailer in the state that sells cigarettes rolled by machines on site. Smokers have embraced roll-your-own cigarettes, since loose tobacco is taxed at a far lower rate than factory-made cigarettes. The Tobacco Haven’s cigarette machines take the concept a step further; state officials argue that the machines, which can roll 200 cigarettes in ten minutes, essentially make the tobacco shop into a tobacco manufacturer. They claim that the store should be paying contributions to the state as other tobacco manufacturers do under the terms of the Master Settlement Agreement. Click here to read more.

Court: Smoking ban constitutional, minus criminal sanctions (NV)
The Nevada Supreme Court has ruled that the state’s voter-approved smokefree law is constitutional, but that the criminal sanctions cannot be enforced because of ambiguities in the definition of facilities that are exempt from the policy. State law bans smoking in indoor workplaces, with exemptions for casinos, bars, strip clubs, and brothels. Business owners had filed the lawsuit because they believed that the exemptions violated equal protection. Read more here.

Judge bars NY from imposing fee increases on tobacco sellers (NY)
In New York, a State Supreme Court Judge has temporarily barred the state from imposing a large registration fee increase on retailers that sell tobacco. The increase was intended to discourage retailers from selling tobacco products in their stores. The argument, however, was that displaced smokers would simply shift their business to Indian reservations, the internet, and the black market, causing more serious effects on the economy and public health. One proposed solution would be to double the registration fee for retailers from $100 to $200. Click here for the full story. Click here for more details on how the registration fee is being handled by the state while the fee is being disputed in court.

Bar files new lawsuit against state's smoking ban (OH)
In Cincinnati, Ohio, a bar is being sued by Attorney General Richard Cordray for consistently violating the state smoking ban. In a counter-suit against the state, the bar owner and a conservative policy group claim that the ban is unconstitutional and requires bars to exercise unrealistic control over the actions of customers. The group argues that the law is too vague in its interpretation. The bar claims to have been compliant with the ban by posting signs, removing ashtrays, and asking customers to refrain from smoking, but city health department officials contend that smoking is still prevalent in the bar. For more details, click here.

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National

Lawsuit challenges tobacco advertising rules
Several tobacco companies have filed a lawsuit against the federal government’s new authority to regulate tobacco products. The lawsuit challenges some aspects of the Family Smoking Prevention and Tobacco Control Act that was recently signed into law by the President. These restrictions include a requirement for print ads to be in plain black and white, and a ban on outdoor advertising within 1,000 feet of any school or playground. The companies are also challenging language in the bill that would require them to provide scientific evidence for advertising claims regarding “reduced-risk” products. Tobacco companies have made it clear that they are not challenging the FDA’s regulatory authority over tobacco products, but are preserving their right to communicate with adult tobacco consumers. Click here to read more about the lawsuit. The case has the potential to reach the Supreme Court. Click here to read a press release from the Campaign for Tobacco-Free Kids.

Tobacco Control Legal Consortium - Legal Update, Summer 2009
The latest issue of the Legal Update, the newsletter of the Tobacco Control Legal Consortium, is now available. This issue features three new publications from the TCLC. The first two address key provisions in the new legislation on FDA tobacco regulation and the law’s impact on state and local governments. The third new publication is an expansion and update of a 2004 synopsis, Legal Authority to Regulate Smoking and Common Threats and Challenges. The newsletter also features highlights of recent tobacco lawsuits, a question and answer on smoke-free policies in public housing, and resources and information relating to tobacco law. Click here to download a PDF of the newsletter.

Kretek sues FDA to stop possible flavored-cigar ban
Kretek International Inc., a major importer of clove-flavored cigars, has filed a lawsuit against the U.S. Food and Drug Administration to prevent the agency from extending a federal law banning flavorings in cigarettes to other tobacco products. Kretek's director of product development reports that clove-flavored cigars are becoming a key source of revenue since the company stopped importing flavored cigarettes in order to comply with the ban. The FDA has warned tobacco companies not to attempt to evade the ban on cigarette flavorings by introducing new flavored tobacco products; however, Kretek contends that its clove cigars are not a new product. The FDA has the authority to issue new regulations to ban flavored cigars, but the process could take years. Click here to learn more about clove cigarettes and cigars. Click here for more details about the lawsuit.

Chantix lawsuit blames drug for 2007 death of Dallas musician
The parents of a Dallas musician have sued Pfizer, Inc., the manufacturer of smoking cessation drug Chantix, claiming that their son died as a “direct and proximate” result of the drug’s side effects, which included vivid dreams, hallucinations and behavioral changes. The FDA placed its most serious safety warning on Chantix earlier this year, as the drug has been linked to reports of psychiatric side effects, such as suicide and suicide attempts. The parents state that their goal in filing the lawsuit is to prompt Pfizer to inform the public of the drug’s potential risks. Because several similar product liability lawsuits have been filed regarding Chantix, an upcoming hearing will determine whether to consolidate the federal cases as a Multidistrict Litigation. Read more here.

The bloom is off the rose for tobacco claims
Although there are few statistics on jury awards in personal injury lawsuits against tobacco companies, growing anecdotal evidence indicates that juries are becoming less sympathetic toward smokers’ claims of being deceived by tobacco companies. Philip Morris was ordered to pay a record $28 billion in punitive damages seven years ago. In an appeal of the case this year, a jury awarded only $13.8 million to the plaintiff. An analyst writes on Law.com that there are likely several reasons for the reduced payout. For one, younger jurors are unfamiliar with times when tobacco products and advertisements were not required to include health warnings. Also, jurors are now placing more blame on smokers for putting themselves at risk than on the tobacco companies for their deceitfulness about the health effects of tobacco use. Click here for the full commentary.

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