Legal

State

Brown announces electronic cigarette maker's agreement to stop deceptive marketing and sales to minors (CA)
California Attorney General Edmund G. Brown Jr. has reached an agreement with electronic cigarette maker Sottera that will prohibit the company from marketing to minors and from making misleading claims about its products. Under the settlement, the company has agreed not to sell e-cigarettes to minors; sell flavored e-cigarette cartridges that could appeal to minors; advertise its product as a smoking cessation device without FDA approval; sell cartridges containing vitamins until there is evidence to support the implied health claim; and claim that the product is safer than cigarettes until there is evidence to support the claims. Sottera will also develop and implement quality control standards, provide warnings that the products contain nicotine, and pay $85,000 in penalties and fees. The settlement was reached without litigation; Brown has filed a lawsuit against another e-cigarette retailer, Smoking Everywhere, over similar concerns. Read more here.

Jury orders to tobacco giants to pay $270,000 in punitive damages to widow of smoker (FL)
A West Palm Beach, Florida jury has awarded the widow of a smoker $2.2 million in compensatory damages and $270,000 in punitive damages for the premature death of her husband. Tobacco companies Phillip Morris and RJ Reynolds were each ordered to pay $1.1 million after being found equally responsible for the death of Charles Piendle, with Piendle himself being 45% responsible for his own death. Punitive damages were decided two weeks later, and the award was less than expected. The outcome was likely influenced by the fact that about 8,000 similar cases are pending across the state, as the case is one of the “Engle progeny” cases, stemming from a class-action lawsuit thrown out by the Florida Supreme Court in 2006. The plaintiff is not expected to appeal the case, although Philip Morris has said it will appeal. Click here for more details.

Senecas want exemption from NY cigarette tax (NY)
The Seneca Indian Nation has filed a request for a temporary restraining order that would block the state of New York from taxing cigarettes sold by Native American retailers to non-Native customers. A new tax plan is scheduled to go into effect on September 1 that would collect $4.35 per pack in taxes on reservations’ cigarette sales to non-Natives. The Senecas argue that the tax plan unlawfully infringes on their federally protected rights by forcing them to enforce the state’s regulations instead of their own. The Governor’s office has not commented on the filing, and the Taxation and Finance Department is planning to implement the tax as scheduled. Taxing reservation sales to non-Natives is expected to bring in about $200 million per year for the state. Read more here.

Twenty-five national public health groups show support for New York City's fight to preserve its point-of-sale graphic signage requirement (NY)
Twenty-five public health organizations have jointly filed an amicus curiae brief supporting New York City’s retail signage law after three major tobacco companies challenged the law. The city ordinance requires retail outlets that sell tobacco to post graphic anti-tobacco posters at the point of sale in an effort to reduce intention to smoke among youth and prompt adult smokers to quit. Philip Morris, RJ Reynolds, and Lorillard filed suit in June, asking the court to block the ordinance from going into effect; the city has requested that a judgment be issued so the law can be implemented as soon as possible. Click here to read more and see a list of organizations that filed the brief.

Judge: Smoking ban does not violate constitution (NC)
A North Carolina district court judge has determined that the state’s smokefree law, which went into effect on January 2, 2010, does not violate the state constitution. The owner of Gate City Billiards filed suit against the law after the Guilford County Board of Health cited him for violating the smokefree law and rejected the claim that the business was a private club exempt from the law. Gate City Billiards had unsuccessfully argued in court that the distinction between not-for-profit private clubs and for-profit clubs was not a fair way to classify exemptions from the law. Gate City Billiards is expected to appeal the decision. Read more about the case here.

Attorney General squashes electronic cigarettes in Oregon (OR)
Oregon Attorney General John Kroger has announced an agreement with Smoking Everywhere Inc. that will ban the sale and distribution of electronic cigarettes in the state. Smoking Everywhere admitted to violating the state’s Unlawful Trade Practices Act by misrepresenting the safety of e-cigarettes as well as using marketing practices aimed at youth. In the agreement, Smoking Everywhere is banned from doing business in Oregon, and must make payments to the state to cover fines and costs incurred. The state had already prevented two national store chains from selling e-cigarettes in the state and reached an agreement with Sottera, another e-cigarette company, to prohibit their sale of e-cigarettes in the state until local and national standards are met. Oregon is the first state to succeed in taking action against electronic cigarette distributors. Read more here.

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National

Mailing ban on cigarettes is upheld by judge
U.S. District Judge Richard Arcara has ruled to uphold the federal government’s prohibition on the mailing of cigarettes under the Prevent All Cigarette Trafficking (PACT) Act, while rejecting a part of the new law that requires sellers to collect local and state taxes if cigarettes are moved between states in other ways. The Seneca Fair Trade Association had challenged the constitutionality of the PACT Act, saying that it unfairly targets Native American businesses and aids larger tobacco companies. Arcara had issued a temporary restraining order that allowed the Senecas to continue their business until the case was decided, but the ruling now prohibits them from continuing to ship cigarettes. The judge did issue an injunction against one part of the law, saying that there are no other federal laws that subject retailers to state and local taxes owed to the destinations of their products, and that this may violate their right to due process. Anti-tobacco advocates say the ruling will help prevent underage smokers from accessing cigarettes through the mail and allow governments to collect taxes that would have previously been lost. Click here to read more or click here to read a statement from the Campaign for Tobacco-Free Kids.

Summer 2010 issue of Legal Update available
The latest issue of the Legal Update, the newsletter of the Tobacco Control Legal Consortium, is now available. The newsletter includes nine new resources from the Legal Consortium and its parent organization, the Public Health Law Center.  These resources include a publication on secondhand smoke and multi-unit affordable housing and a publication on tobacco retailer licensing as an effective enforcement tool.  Also featured are three law and policy tools that explain state and local options for regulating tobacco marketing in light of the new federal tobacco regulation, and a series of four fact sheets on the fundamentals of preemption, its consequences for public health advocacy, and preemption-related negotiating strategies and questions that advocates might want to consider. Click here to access the newsletter.

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