Legal

State

Safeway challenges SF tobacco ban (CA)
San Francisco City Attorney Dennis Herrera has filed a motion in federal district court that would dismiss the latest lawsuit seeking to overturn the city’s ban on the sale of tobacco products in stores with pharmacies. The original 2008 ordinance, which prohibited pharmacies from selling tobacco, was first challenged in court in 2008, when Walgreens pharmacy argued that the law’s exemption for other stores with pharmacies, such as supermarkets, was unfair. An appeals court sided with Walgreens, prompting the city to update the ordinance to eliminate all exemptions. Supermarket chain Safeway has now filed suit, saying the law is arbitrary, unconstitutional, and violates the company’s due process rights. Supporters of the law, including the California Medical Association, argue that the law is supported by research and will benefit the public health. Click here to read more.

Engle Progeny Cases (FL)
Several more cases have been decided this month in the Engle progeny suits, which stem from a class-action lawsuit thrown out by the Florida Supreme Court in 2006. A jury has ruled in favor of the defense in Oliva v. R.J. Reynolds. The plaintiffs had argued that the tobacco companies had developed an addictive and deadly product without informing the public of the dangers of cigarettes, thereby making them responsible for Mr. Oliva’s emphysema and chronic obstructive pulmonary disease (COPD). The defense said that Mr. Oliva made the decision to smoke and continue smoking despite knowing the risks. The jury found that although Mr. Oliva was addicted to the nicotine in cigarettes, this addiction did not cause his chronic obstructive pulmonary disease. In the Koballa v. Philip Morris retrial, the jury decided in favor of Stella Koballa, a former smoker who suffered from COPD and lung cancer. R.J. Reynolds was found to be 30% responsible for her illness, and must pay Koballa $300,000 of the $1 million in damages sustained. The original trial ended in a mistrial in October 2010. In the Tullo v R.J. Reynolds case, a jury has awarded $4.5 million in damages to the widow of a smoker who succumbed to lung cancer after smoking various cigarette brands for sixty years. The jury assigned responsibility for Tullo’s death to Mr. Tullo himself (45%), Philip Morris (45%), Lorillard (5%), and Liggett (5%), awarding $3 million in past damages in $1.5 in future damages. The Sulcer v Lorillard case resulted in a modest $11,250 award for the plaintiff, the wife of deceased smoker Billy Sulcer. The total award was $225,000, which was reduced by 95% after Lorillard was only found to be 5% responsible for the addiction that caused Mr. Sulcer’s death. Mistrials were declared in Betty Allen v. R.J. Reynolds when the jury could not agree on the nature of addiction and in Talenfeld & Marraffio v. R.J. Reynolds at the request of the plaintiffs based on arguments made in open court.

Court ponders when tobacco is a cigarette (NH)
The New Hampshire Supreme Court is reviewing a case in which a tobacco retailer and the state are at odds about cigarette manufacturing and what constitutes a cigarette. In 2009, a tobacco retailer installed machines that can roll about 200 cigarettes in ten minutes, which allowed customers to buy loose tobacco and roll their own cigarettes for a lower cost than they would pay for cigarettes, which are taxed at a higher rate. In the lawsuit, the state is arguing that the machine-rolling of the cigarettes constitutes cigarette manufacturing, and would require the retailer to pay into the Master Settlement Fund as other cigarette manufacturers do. If the state wins the case, the retailer would be required to pay $5.33 per carton of cigarettes into the fund. Read more here. Related: Cigarette-making shops start drawing attention New Hampshire is not the only state where retailers with cigarette rolling machines have drawn attention; government authorities in Michigan issued a letter stating that shops using such machines must be licensed as cigarette manufacturers and meet other requirements. Regulatory agencies in Wisconsin are also researching the legal implications of these machines. Click here to learn more.

Legacy® files amicus brief in support of New York City's graphic warning sign appeal (NY)
Along with 17 other public health organizations, Legacy has filed an amicus curiae (friend of the court) brief in support of New York City’s appeal of a court decision against the city’s point-of-sale tobacco product warning ordinance. Last year, the New York City Board of Health made a regulation requiring that retailers post graphic anti-tobacco posters where tobacco products were sold, prompting three major tobacco companies to file suit to block the rule in June 2010. A court determined that the regulation was in violation of the Federal Cigarette Labeling and Advertising Act and struck down the law; New York City is appealing this decision. In support of the appeal, the brief provides evidence that graphic warnings are effective in helping smokers quit and that making smoking cessation resources available increases calls to quitline. The brief claims that the regulation is legal under the 2009 Smoking Prevention Act, and urges the U.S. Court of Appeals to reverse the lower court decision. Click here to read more.

Ohio Supreme Court agrees to hear bar owner's challenge of smoking ban (OH)
The Ohio Supreme Court will hear an appeal by a bar owner who claims that the state’s smoke-free law is unconstitutional. A lower court decided that the state health department had exceeded its authority when it fined the owner of Zeno’s Victorian Village $33,000 for repeated violations of the state smoke-free law. This was overruled by the 10th District Court of Appeals, which found that the law should have been enforced as it was because Zeno’s owners had intentionally violated the law. Zeno’s is appealing this decision, claiming that the law affects bar owners’ property rights, enforcement of the ban exceeds the authority of state health officials, and methods of enforcement violate the law’s language. The Department of Health will continue to enforce the law during the judicial review. Ohio’s smoke-free law was approved by voters in 2006. Read more here.

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National

British American Tobacco cut from U.S. racketeering case
U.S. District Judge Gladys Kessler has decided that a racketeering lawsuit filed by the U.S. government against several large tobacco companies does not apply to British American Tobacco Plc (BAT), Europe’s largest cigarette manufacturer. In her 2006 ruling, Kessler found that the cigarette companies, including BAT, had violated anti-racketeering laws by concealing health hazards known to be associated with smoking. The companies were ordered to stop marketing cigarettes as “light” and “low tar” and to make court-ordered statements about the negative health effects of smoking. In her decision to remove BAT from the lawsuit, Kessler said that an earlier Supreme Court ruling limits the U.S. from pursuing liability in foreign activities, and that BAT’s involvement in the U.S. was unrelated to the racketeering charges. Despite having been dropped from case, BAT must still pay the government’s legal costs. Read more here.

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International

McCabe family reaches settlement with tobacco giant over landmark case (Australia)
A confidential settlement has been reached between British American Tobacco (BAT) and the family of Rolah McCabe, a former smoker who died from lung cancer in 2002. McCabe was the first person in Australia to successfully sue a tobacco company in 2002, and was awarded $700,000 by the Victorian Supreme Court after a judge determined that BAT had destroyed documents to prevent their use in court. This award was overturned on appeal, and BAT subsequently pursued the McCabe family in court for $10 million in legal costs. BAT has agreed to drop legal action against the family and their legal team; the remaining details of the agreement were not made public, although statements from the McCabe family suggest that they found it to be favorable. Click here to read more.

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