Legal

Reports

New policy briefs on considerations for: Smoke-free affordable multi-unit housing, provisions of FDA regulations that apply in the retail environment
The Tobacco Control Legal Consortium (TCLC) has released two new policy briefs. One brief is on regulating smoking in multi-unit housing, and discusses policy benefits, elements, considerations and affordable smoke-free multi-unit housing. Click here to view the brief. The other policy brief discusses how the 2009 FDA Family Smoking Prevention and Tobacco Control Act applies to retailers. Click here to view the document.

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State

Nebraska Supreme Court dismisses appeal of Clean Indoor Air Act Ruling (NE)
The Nebraska Supreme Court has dismissed an appeal of a district judge’s order to strike down several exceptions to the statewide smoke-free policy. The Nebraska Attorney General’s office had appealed a 2011 decision in which Lancaster County District Judge Jodi Nelson sided with an Omaha pool hall owner that challenged the exemptions to the 2009 public smoking ban. The law includes exceptions for cigar bars, some hotel rooms, tobacco-only retailers, and facilities that research the health effects of smoking. Nelson said only the exception for research facilities is enforceable, and decided the other exceptions amount to special treatment for certain businesses, which is unconstitutional. In the current ruling, the justices decided that the state appealed the case too soon, as one of the pool hall owner’s two lawsuits against the smoking ban has not yet been resolved. The case will now return to the district court and will likely eventually return to high court after the second lawsuit is resolved. Read more here.

NY State, NYC sue 2 roll-your-own cigarette stores (NY)
The New York City Law Department and New York Attorney General’s office are together filling a lawsuit against two retailers with “roll your own” cigarette machines, alleging that the manufacturers put customers at risk by selling cigarettes that do not meet the state’s fire safety requirements. A statement from the Attorney General also notes that due to a tax loophole for products other than cigarettes, the machine-rolled cigarettes are sold at “illegally low prices” which makes it easy to take up smoking and discourages smokers from quitting. At some stores, a pack of the cigarettes rolled in-store costs about $4, while a pack of mass-produced cigarettes normally costs $13 with taxes. Read more here.

Wisconsin judge issues injunction on tobacco crackdown; Department of Revenue to ask court to rule on roll your own issue (WI)
In February, a Wisconsin judge issued an injunction which blocks the state’s attempts to regulate the use of roll-your-own cigarette machines. Last year, the state Department of Revenue (DOR) announced that it would require that retailers with roll-your-own cigarette machines must obtain manufacturing and distribution permits to operate their machines and make payments to the state as other tobacco manufacturers do. Under the injunction, the state’s regulatory attempts will remain stalled until a RYO machine company’s lawsuit over the regulations is resolved. The DOR has announced that it will file a motion of injunctive relief in late March to request that the court bar pipe tobacco from being used in the machines. Pipe tobacco is often used in roll-your-own cigarette machines because it is cheaper than the loose tobacco intended for the machines, but state law prohibits the sale of tobacco for use in cigarettes unless the brand is on a state-approved list. Click here to learn more about the injunction, or click here to read a press release from the Wisconsin Department of Revenue about the ongoing legal proceedings.

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National

Supreme Court refuses tobacco firm appeal in smoker case
The U.S. Supreme Court has refused to hear a tobacco company’s appeal of a lawsuit in which the company was ordered to pay $28.3 million in damages to the wife of a longtime smoker who died from lung cancer. Reynolds American, Inc., a unit within R.J. Reynolds Tobacco Company, had appealed the case because it believed its rights to due process had been violated, an allegation the company believed could affect thousands of other smokers’ lawsuits pending in Florida. The lawsuit was one of hundreds of “Engle progeny” cases which stemmed from a disbanded Florida class action lawsuit brought against major tobacco companies by sick or deceased smokers and their families. After it was decided the smokers could not sue as a class, hundreds of plaintiffs filed suit individually. To date, tobacco companies have been ordered to pay over $375 million in the approximately sixty Engle progeny cases that have been resolved, and 75 more lawsuits are expected to be tried this year. Read more here.

U.S. circuit court to hear graphic image appeals
Following a federal judge’s ruling that blocks a federal law that would require cigarette makers to place graphic warnings on cigarette packages, the U.S. Circuit Court of Appeals for the District of Columbia granted the Food and Drug Administration's appeal of two court decisions that have resulted in setbacks to the implementation of the new warning labels. A three-judge panel will hear oral arguments on April 10, 2012. Under federal law, the warning labels would have been required on all cigarette packages by September 2012; however, five major tobacco manufacturers filed a lawsuit to challenge the law, claiming that the warning labels would constitute a violation of the companies' First Amendment right to free speech. Click here for more details.

Federal Appeals Court upholds graphic cigarette warnings and other key provisions of new tobacco regulation law
In two rulings, a U.S. Court of Appeals has upheld key provisions of the Tobacco Control Act, the law that gives the Food and Drug Administration (FDA) power to regulate tobacco products. Importantly, the panel of judges decided that the law requiring large, graphic warning labels to be placed on all cigarette packages is constitutional, and that the warnings do not impose restrictions on cigarette companies’ First Amendment rights to freedom of speech. In a second case, the court ruled that the Tobacco Control Act’s limitations on tobacco marketing and promotions are constitutional. These proceedings are separate from a narrower case in which a federal judge blocked the implementation of graphic warning labels. Read the full story here, or click here to read a press release from the Campaign for Tobacco-Free Kids, which notes that this ruling sends an important message on the necessity of the warning labels.

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