Legal

State

Court backs Walgreens' objection to tobacco ban (CA)
A California appeals court has ruled that Walgreens can proceed with a lawsuit challenging San Francisco’s ban on the sale of tobacco in certain pharmacies, reversing an earlier decision to dismiss the case. The 2008 law was enacted to protect public health by prohibiting the sale of tobacco at drugstores that sell healthcare products, under the rationale that the sale of tobacco implies that the pharmacy approves of smoking. The ordinance does not apply to grocery or warehouse stores that have pharmacies, so Walgreens claims that this makes the law unconstitutional and anticompetitive. In the 3-0 decision, the appeals court reinstated the lawsuit instead of overturning the ordinance, leaving room for the ban to potentially be broadened. Click here to read more.

U.S. Supreme Court lets theater smoking ban stand (CO)
The U.S. Supreme Court has declined to hear a case regarding whether or not actors onstage can be exempted from Colorado’s statewide indoor smokefree law. The petitioner, Chip Walton, cited freedom of expression as the rationale behind attempting to get an exemption to the smokefree law, and noted that half of the states with similar policies allow exemptions or case-by-case exceptions for theatrical performances. This argument has not held up at any judicial level in Colorado, where judges have consistently ruled that public health was more important than freedom of expression. By declining to review the case, the Colorado Supreme Court’s ruling that the law applies to theatrical performances will stand. Click here to read more.

Jury in tobacco case awards smoker $8 million (CT)
A federal court jury has awarded a Connecticut woman $8 million in compensatory damages to be paid by tobacco manufacturer R.J. Reynolds. Barbara Izzarelli, a smoker of Salem cigarettes for 25 years, filed the suit against Reynolds after developing cancer that resulted in removal of her larynx. The plaintiff used documents and advertising campaigns from 1972 to 1974 to show that Reynolds intentionally designed and marketed the cigarettes in such a way to lure young smokers to the brand, ensure addiction, and encourage continued smoking. The jury awarded Izzarelli with $13.9 million in compensatory damages, which was reduced to $8 million due to her own liability in continuing to smoke. A district judge will now determine how much the company must pay in punitive damages. State law allows punitive damages to be up to double the amount of the compensatory damages. Read more here.

Jury verdict for Philip Morris USA in Engle progeny case (FL)
A Duval County, Florida jury has ruled in favor of Philip Morris USA in a case filed by the family of a smoker. The case is one of the “Engle progeny” cases that stems from a class-action lawsuit thrown out by the Florida Supreme Court in 2006. The jury used general findings made in the original class action case to make their decision, concluding that the plaintiff failed to prove the company was liable. Click here to read a press release from Philip Morris USA, or click here to read a legal synopsis of the case, Gil de Rubio v. Philip Morris USA, et al. Related: Jurors award $5M in tobacco lawsuit  Another Florida jury has awarded Earline Alexander, the widow of a former smoker, $5 million in damages in a lawsuit against R.J. Reynolds. In this Engle progeny case, the plaintiff sought damages for her husband’s death from chronic obstructive pulmonary disease, a result of smoking for sixty years.  The plaintiff will receive $2.5 million in compensatory damages and $2.5 million in punitive damages. R.J. Reynolds will appeal the case.  Read more here.

Motion following trial challenges law benefiting Big Tobacco (FL)
Attorneys for a woman who was awarded a multimillion-dollar verdict against R.J. Reynolds have filed a motion attempting to overturn a state law that limits the amount of money tobacco companies must post in bond while appealing a verdict. The law makes the bond amount dependent on the number of judgments on appeal in the state, limiting what must be paid to plaintiffs. The attorneys argue that the law infringes on the courts’ responsibilities, as the bonds process should be decided by the courts, not Legislature; they also claim the law gives special privilege to the tobacco companies that are unavailable to citizens. Normally, defendants must post bond equal to the judgment plus twice the rate of interest; in this case, R.J. Reynolds has posted less than a third of the $17.5 million owed. Read more here.

Clubs, bingo parlors challenge Kansas smoking ban (KS)
Four Kansas businesses are going to court to challenge the state’s impending smokefree law, saying that the law restricts customers’ right to associate with whom they choose and denies businesses equal protection of the law. The law will make bars, restaurants, bingo halls, and some private clubs smoke-free as of July 1, but exempts some types of private clubs and state-owned casinos. The businesses filing the suit say that the main issue is equal protection, and that the decision to allow smoking in some establishments but not others is arbitrary and unfair. A hearing is scheduled to take place on June 29, two days before the law is scheduled to go into effect. Click here to read more.

Three tobacco companies, retailers sue NYC health board over smoking ads (NY)
Philip Morris USA, Lorillard Inc., and Reynolds American Inc. have joined two retailers and two trade associations in a lawsuit challenging a New York City Board of Health rule that requires tobacco retailers to post graphic anti-tobacco signs at the point of sale. The plaintiffs claim that the federal government, not the city, has the authority to set requirements for health warnings on tobacco products. They also argue that the content of the signs is not purely factual, and that retailers are being forced to communicate messages about quitting smoking. Additionally, the plaintiffs claim that the rule will crowd out other advertisements for legal products, violating retailers’ first amendment rights. The Board of Health contends that the resolution is intended to help educate smokers on the negative health consequences of smoking and provide information on cessation services. Read more here. Click here to read a press release from the Campaign for Tobacco-Free Kids that asserts that the new signage is in compliance with both federal law and the First Amendment of the Constitution.

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National

Supreme Court rejects appeals of tobacco ruling
The Supreme Court has rejected appeals by both the tobacco industry and the U.S. government to overturn a verdict which found tobacco companies guilty of violating racketeering laws. In its appeal, the U.S. government sought to collect $280 billion of ill-gotten profits from the tobacco industry plus another $10 billion for a national smoking cessation program. The tobacco industry’s appeal was an attempt to overturn the racketeering judgment. The Supreme Court decided to let the previous verdict stand without comment. Read more here, or click here for a press release from the American Cancer Society. Click here to read a summary of the 2006 U.S. District Court ruling.

Group challenges 2 members of tobacco safety panel
The ethics watchdog group Citizens for Responsibility and Ethics in Washington (CREW) has filed a complaint with the inspector general of the Department of Health and Human Services, arguing that two members of the Food and Drug Administration’s Tobacco Products Scientific Advisory Committee should be removed due to their work consulting drug companies that make smoking cessation products. The group says that the two individuals have connections to smoking cessation drug companies that would undermine public confidence in the FDA’s regulation of the tobacco industry. The FDA says that tobacco cessation drugs are not regulated by the Center for Tobacco Products, and therefore there is no conflict of interest. The Altria Group previously challenged the participation of these committee members due to their involvement in lawsuits against tobacco companies, but that challenge was rejected by the FDA. Click here to read more, or click here to read CREW’s letter to HHS.

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