Legal

State

Lawsuit pending regarding cig fee (CA)
A complaint serving as a precursor to a lawsuit has been filed against San Francisco by Philip Morris USA and several local retailers, who claim the city is violating state law by charging an extra 20 cents per pack without getting voter approval. Under California state law, new taxes require approval from two-thirds of voters, but local governments can charge fees to pay for programs without voter approval. The complaint says that the charge is a tax, but the city maintains that the charge is a regulatory fee designed to cover the cost of cleaning up cigarette butts. Click here to read more.

State sues electronic cigarettes retailer (CA)
California Attorney General Jerry Brown has filed suit against Smoking Everywhere, one of the largest e-cigarette retailers in the country, arguing that the company has violated state laws by making misleading statements, failing to warn consumers of potential harm, and engaging in unfair business practices. The state is concerned that there is no regulation of the product and that a lack of age verification on web sites allows minors to purchase the product. Read more here. Related: Ruling could muddle Brown's case against electronic cigarettes The recent federal court decision that the FDA does not have the authority to regulate e-cigarettes could complicate California’s case against Smoking Everywhere. The California Attorney General sought to ban sales of e-cigarettes in the state until the products were proven to be safe and approved by the FDA, but the federal judge ruled that the FDA did not have the right to regulate the products. Click here to read more.

Denver theatre company to take smoking ban case to Supreme Court (CO)
After losing battles in state court for three years, a Denver, Colorado-based theatre company will petition the U.S. Supreme Court for the right to smoke non-tobacco products onstage during theatrical productions. The Colorado Supreme Court refused to exempt the company from the state’s indoor smoking ban, declaring public health promotion more pressing than free speech. The petition, the first of its kind to be put in front of the Supreme Court, is expected to be filed in March; there is no guarantee that the case will be heard. Click here to read more.

Ex-smoker drops Philip Morris (FL)
A former smoker from Florida has dropped his lawsuit against Philip Morris USA, settling for $1,000 after two days of trial. Thousands of Florida smokers are suing major tobacco companies as part of a former class-action lawsuit that has allowed plaintiffs to pursue individual suits after a $145 billion judgment was thrown out by the Florida Supreme Court. The plaintiff’s attorney cited health reasons for dropping the lawsuit, but Altria Group claims the settlement was a way of avoiding paying large legal fees due to the company if he lost at trial. While the outcome of this case does not have an effect on the approximately 4,000 other pending claims, some note that the legal tactic used by Philip Morris could discourage some of the other plaintiffs from pursuing their cases. Click here to read more.

Lawsuit seeks to allow Nevada convention smoking (NV)
The American Cancer Society (ACS) has filed a lawsuit against the state of Nevada, health officials, and the Las Vegas Convention and Visitors Authority in an attempt to invalidate a recently enacted state law that will permit smoking at trade shows. The law is an amendment to the Clean Indoor Air Act, and was added to a bill intended to make stalking and text message threats criminal offenses. The complaint accuses lawmakers of ignoring a state constitutional requirement that requires law to deal with one subject, although the state legislative legal counsel approved the merging of the smoking provisions to the stalking bill. Tourism and convention officials express concern that if smoking is not permitted at trade shows, revenue from conventions and exhibitions will be lost. Click here to read more about the lawsuit.

New York City tobacco tax suits limited by top court (NY)
The U.S. Supreme Court has ruled that New York City cannot use a federal racketeering law to enforce taxes on internet tobacco sales. The decision reverses a 2008 federal appeals court ruling that declared the companies were breaking the law by not providing states with information about internet sale customers for tax collection purposes. The Supreme Court said there was not a strong enough link between the failure to supply customer information and the city being unable to collect taxes to accuse the outlets under the racketeering law. Click here to read more.

USSTC fights New York City flavored tobacco ban (NY)
U.S. Smokeless Tobacco Manufacturing Co. and U.S. Smokeless Tobacco Brands Inc. have filed suit against New York City in an attempt to overturn the city’s upcoming ban on flavored tobacco. The companies argue that the ban is unenforceable, oversteps the boundaries of a municipality according to the Family Smoking Prevention and Tobacco Control Act, and violates the U.S. Constitution by enacting a law that restricts commerce between states. Click here to read more.

$258M from tobacco settlement for Ohio held pending court (OH)
The American Legacy Foundation will file an appeal of a recent court ruling that would allow Ohio to use money set aside for smoking treatment and cessation services for other purposes. The money, part of the 1998 master settlement with major tobacco companies, was originally set aside as the Ohio Tobacco Prevention Foundation; the state has been seeking to use the funds to finance other programs such as child protective services, optional Medicaid programs and health-care coverage for children. The appeal will freeze the $258 million until the state supreme court makes a decision. Click here to read more. Update: Legacy files appeal to Ohio Supreme Court Click here to read a press release from Legacy which contains a timeline of events related to the funding dispute in Ohio.

TN says Colombian cigarette maker owes $300,000 (TN)
The State of Tennessee has filed suit against Colombian cigarette manufacturer Pronalci S.A., claiming the company owes the state $300,000 in required payments for cigarettes sold in 2009. The state attorney general is requesting that a judge force Pronalci to pay the full amount plus penalties. Although small tobacco companies were not part of the original 1998 master settlement, they are required to pay into escrow accounts in order to get licenses to sell their products in the state. In Tennessee, money from these payments goes into the state’s general fund to help cover costs of government operations. Click here to read more.

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National

U.S. judge upholds most limits on tobacco marketing
U.S. District Judge Joseph McKinley of Kentucky upheld the majority of the provisions of the Family Smoking Prevention and Tobacco Control Act, resolving a legal challenge in which tobacco companies claimed the law violated their rights to free speech. The judge upheld measures that require graphic warning labels to cover half of the front of cigarette packages; ban sponsorships of athletic, cultural, and social events; bar the use of tobacco imagery on items such as t-shirts; prohibit tobacco companies from making health claims not approved by the FDA; ban free samples of tobacco products and free gifts with purchase; and allow federal, state and local government to impose additional regulations. Two provisions were rejected, including a ban on color and graphics on labels and in advertising and a ban on statements that tobacco products are safe or less harmful due to FDA regulation. Click here to read more about the decision, or read a joint statement about the ruling from several public health organizations.

Judge OKs imports of e-cigarettes, blasts FDA
U.S. District Judge Richard Leon granted a preliminary injunction preventing the FDA from regulating electronic cigarettes and banning their import into the country. The decision asserts that e-cigarettes are recreational products, not a drug-device combination, and do not contain tobacco, so the FDA does not have jurisdiction over them. The FDA maintains it should have control over the products because they are devices that deliver nicotine, and because of the marketing claim that e-cigarettes can be used to treat nicotine withdrawal. The FDA and anti-tobacco groups are worried about the lack of evidence proving the products’ safety and efficacy as smoking-cessation devices. Click here to read more about the court ruling, or read statements about the decision by the Campaign for Tobacco-Free Kids and the American Cancer Society’s Cancer Action Network.

Kretek drops cigar lawsuit against FDA
Kretek International Inc., the company that imports and markets Djarum clove cigars, has dropped a lawsuit against the FDA after the agency placed information on its website clarifying that cigarettes, not cigars, would be affected by the ban on flavored tobacco products. Kretek discontinued importation of clove flavored cigarettes in advance of the ban and assisted in issuing reminder warnings to tobacco retailers about the ban on flavored cigarettes. Kretek is reserving its option to re-file at a future date. Click here to read more.

Tobacco's plea: No big US payments
According to an Associated Press report, tobacco industry lawyers have held secret meetings with Solicitor General Elena Kagan in an attempt to negotiate an agreement outside of the courtroom on the Department of Justice racketeering lawsuit. The DOJ lawsuit has gone on for ten years, and the negotiations could prevent a long and expensive appeal process that is likely to end in the Supreme Court. A judge found tobacco companies guilty of racketeering in 2006, but subsequent court decisions have freed the companies from paying the government $280 billion in past profits or $14 billion for a national antismoking campaign. Click here to read more. For background information about the Department of Justice Lawsuit, click here.

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International

Japan court rejects tobacco lawsuit, notes dangers (Japan)
For the first time in Japan, a legal ruling has recognized that smoking is addictive and can lead to lung cancer and other respiratory illnesses. Despite this victory, the Yokohama District Court ruled that the plaintiffs cannot collect compensation from Japan Tobacco because the smokers freely chose to smoke, and could not prove that smoking caused their health problems. The lawsuit, filed by two former smokers and the widow of a smoker, had also called for sterner warning labels for cigarettes and a ban on cigarette vending machines. The plaintiffs say they never expected to win in court, but are pleased with the ruling and hope it will send a message about the dangers of smoking and encourage policy change. Click here to read more.

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