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Altria Group v. Good (U.S. S. Ct.)

Issue

The issue in this case is whether certain Federal Trade Commission (“FTC”) consent decrees or the Federal Cigarette Labeling and Advertising Act (the Labeling Act) preempt the Maine Unfair Trade Practices Act.

AMA interest

The AMA, in keeping with its objective of protecting public health, supports a smoke-free America.

Case summary

The plaintiffs in this putative class action, filed under Maine’s Unfair Trade Practices Act, alleged that Philip Morris deceived consumers by using the terms “light” and “lowered tar and nicotine” in marketing Marlboro Lights.  They asserted that these descriptors are deceptive because smokers of such cigarettes may “compensate” for the lower tar and nicotine levels, for example, by taking deeper puffs or smoking more, and thus may in fact receive as much tar and nicotine as smokers of regular cigarettes.

The defendants countered that allowing such state-law claims would effectively impose a prohibition “based on smoking and health” of the sort expressly preempted by the Labeling Act.  The defendants also argued that plaintiffs’ state law unfair trade practices claims conflict with the FTC’s regulatory approach as to “light” and “low tar” cigarettes and thus are impliedly preempted as well.

The trial court held that the plaintiffs' claims were preempted, but the United States Court of Appeals for the First Circuit reversed.  The First Circuit held that plaintiffs’ claims did not fall within the scope of the federal Labeling Act because the claims were not based on “smoking and health,” but instead on a more general duty not to deceive.  The First Circuit found no implied federal preemption because there had been no formal FTC rulemaking regulating the use of the “light” and "low tar” descriptors.  The defendants  appealed to the United States Supreme Court.

Litigation Center involvement

The Litigation Center joined an amicus brief to support the plaintiffs.

View the brief (PDF, 319KB).

 

American Cancer Society v. State of Montana, 103 P.3d 1085 (Mont. 2004)

Issue

The issue in this case was whether a Montana law barring municipal smoking prohibitions in business establishments with permits for video gambling machines was valid under the Montana Constitution. 

AMA interest

The AMA, in keeping with its objective of protecting public health, supports a smoke free America.

Case summary

Several not for profit organizations, including the Montana Medical Association, asked the Montana Supreme Court to declare the state law unconstitutional under provisions of the Montana Constitution stating that all persons have the inalienable right to "a clean and healthful environment" and that the state is to maintain and improve the environment.  The suit also challenged the law under the "single subject" and "local government sovereignty" provisions of the Montana Constitution. 

The Montana Supreme Court, in a split decision, held that the state law did not violate the local government sovereignty provision of the Montana Constitution.  The court declined to address the other constitutional arguments.  Although it held the statute constitutional, the court also found that, because of the way it was worded, the law had "no force or effect."  Thus, the case ended up in a victory for the anti-smoking coalition that had brought the suit. 

Litigation Center involvement

The Litigation Center filed an amicus curiae brief to oppose the state law prohibiting local anti-smoking ordinances. 

View the brief (PDF, 115KB).

 

Beachfront Entertainment v. Town of Sullivan’s Island (S.C. S.Ct.)

The Town of Sullivan’s Island, South Carolina passed an ordinance that prohibits smoking in enclosed workplaces or in outside areas where the smoke could enter the workplace.  The plaintiffs contend that various state and federal laws expressly or impliedly preempt the ordinance.  The trial court upheld the ordinance, but the case is being appealed to the South Carolina Supreme Court.

AMA involvement

The AMA, along with the South Carolina Medical Association and several other public health organizations, filed an amicus brief in the South Carolina Supreme Court.

View the brief (PDF, 1MB).

 

D.A.B.E. v. Toledo-Lucas County Board of Health, 773 N.E.2d 536 (Ohio S.Ct. 2002)

The Litigation Center joined the Ohio State Medical Association and several other public interest organizations in an amicus curiae brief.  The purpose of the brief was to convince the Ohio Supreme Court that second hand cigarette smoke is a public health hazard and therefore justifies a regulation by the Lucas County, Ohio, Board of Health to restrict smoking in commercial establishments, such as bars and restaurants.

The Ohio Supreme Court ruled that county boards of health in Ohio are not empowered to pass anti-smoking ordinances.  The court noted the dangers of tobacco usage, including secondhand smoke, and the court also acknowledged that local boards of health are better situated than the Ohio General Assembly to protect public health.  Nevertheless, county boards of health can only derive their authority from specific legislative acts, and the Ohio legislature had not authorized a right to pass a county anti-smoking law.

View the brief (PDF, 120KB).

 

Engle v. Liggett Group, Inc., 945 So.2d 1246 (Fla. S. Ct. 2006)

Pursuant to a jury verdict, the trial court in 2000 awarded a class of smokers $145 billion against the countries’ major tobacco companies.  The claim was based on breach of warranty and various torts.  However, after having previously approved class certification, the Florida Court of Appeal decertified the class.  The case was appealed to the Florida Supreme Court, which remanded to the trial court, directing decertification of the class without prejudice to the class members filing individual claims within one year.  The Florida Supreme Court approved the Court of Appeal’s reversal of the $145 billion dollar punitive damages award, but ordered reinstatement of compensatory damage awards to two individual plaintiffs.

AMA involvement

The AMA, along with several other public health organizations, filed an amicus curiae brief to urge recertification of the plaintiff class. The brief emphasized the need for class action litigation as an appropriate tool for protecting public health.

View the brief (PDF, 112KB).

 

Food and Drug Administration v. Brown & Williamson Tobacco Corp.
529 U.S. 120 (2000)

Issue

The issue in this case was whether the Federal Food and Drug Administration (FDA) had authority to regulate tobacco products as customarily marketed, i.e., without manufacturer claims of therapeutic benefit.

AMA interest

The AMA has long opposed tobacco use based on the massive body of scientific evidence that tobacco is addictive and kills smokers.

Case summary

A group of tobacco manufacturers, retailers and advertisers filed suit, challenging FDA regulations governing tobacco products’ promotion, labeling and accessibility to children and adolescents.  Plaintiffs argued that the FDA lacked jurisdiction to regulate tobacco products marketed without manufacturer claims of therapeutic benefit.  The trial court upheld the FDA’s authority, but the Fourth Circuit Court of Appeals reversed, holding that Congress had not granted the FDA jurisdiction to regulate tobacco products.  The Supreme Court affirmed the Fourth Circuit’s decision, reasoning that Congressional intent to exclude tobacco products from the FDA’s jurisdiction was clear from the Food, Drug, and Cosmetic Act (FDCA) since one of the statute’s fundamental precepts is that any product regulated by the FDA that remains on the market must be safe, whereas the FDA had exhaustively documented that tobacco products were unsafe and dangerous.

AMA involvement

The AMA joined in an amicus curiae brief with 33 other organizations in support of the FDA’s position.

View the brief (PDF, 1MB).

 

Foundation Corp. v. Mercer (Cir. Ct. Ohio County, W. Va. 2006)

Issue

The issue in this case was whether a physician should have been sued for carrying out his official duties as the health officer for a county board of health, by enforcing a board of health ordinance restricting tobacco use in certain public establishments.

AMA interest

The AMA, in keeping with its objective of protecting public health, supports a smoke-free America.

Case summary

The Wheeling-Ohio County [West Virginia] Board of Health passed an ordinance restricting the use of tobacco products in certain public establishments.  A tavern owner objected to both the passage and enforcement of the ordinance and sued the Board of Health’s health officer, Dr. William C. Mercer, in his individual capacity for carrying out his official duties.  As a result, Dr. Mercer had to retain an attorney to defend himself, and had to pay that attorney out of his own pocket. 

The court dismissed the lawsuit in December 2006.

Litigation Center involvement

The Litigation Center and the West Virginia State Medical Association helped pay Dr. Mercer’s legal fees. 

 

Lexington-Fayette County Food & Beverage Assoc. v. Lexington-Fayette County Health Dep't, 131 S.W.3d 745 (Ky. S. Ct. 2004)

Issue

The issue in this case was whether a county ordinance prohibiting smoking in most enclosed areas open to the public was valid.

AMA interest

The AMA, in keeping with its objective of protecting public health, supports a smoke-free America.

Case summary

The Lexington-Fayette Urban County Council passed an ordinance prohibiting smoking in most retail establishments.  The plaintiff was a non-profit Kentucky corporation, whose members consisted generally of food and beverages sellers in Fayette County.  The plaintiff sued to have the smoking ban ordinance declared invalid, claiming (1) state law preempted the ordinance, (2) the ordinance was unconstitutional because it was overly broad, (3) the ordinance was unconstitutional because of vagueness, and (4) the ordinance constituted an unreasonable infringement on business owners' right to transact business as they deem fit/prudent.

The trial court, on cross-motions for summary judgment, upheld the ordinance.  The case was then appealed directly to the Kentucky Supreme Court, bypassing the Kentucky Court of Appeals.

The Kentucky Supreme Court upheld most of the ordinance.  However, the court found that certain language in the ordinance was too vague to be reasonably understood.  To that extent, the ordinance was unenforceable.

Litigation Center involvement

The Litigation Center, through the AMA and the Kentucky Medical Association, filed an amicus curiae brief that argued that municipalities should have the power to pass anti-smoking ordinances. 

View the brief (PDF, 461KB).

 

Lorillard Tobacco Company v. American Legacy Foundation
903 A.2d 728 (Del. S.Ct. 2006)

Issue

The issue in this case was whether an anti-tobacco advertising campaign vilified a tobacco company in violation of the terms of a previously entered master settlement agreement.

AMA interest

The AMA, in keeping with its objective of protecting public health, supports a smoke-free America.

Case summary

The American Legacy Foundation (ALF) was created by the 1998 Master Settlement Agreement (“MSA”), which resolved the lawsuits filed by most of the states against the nation’s largest tobacco companies.  The principal purpose of the ALF was to develop advertising campaigns to discourage youth smoking.

Lorillard Tobacco Company, one of the parties to the MSA, contended that the ALF advertising was vilifying it, in violation of the MSA.  ALF sued Lorillard for a declaratory judgment that it was not violating the MSA.  The Delaware Chancery Court sided with ALF and entered summary judgment in its favor.  Lorillard appealed that judgment.

The Delaware Supreme Court affirmed.

Litigation Center involvement

The Litigation Center and the Medical Society of Delaware, along with several other public health organizations, filed an amicus curiae brief in the Delaware Supreme Court in support of the ALF.  The amicus brief pointed out that effective anti-tobacco advertising must be somewhat provocative. 

View the brief (PDF, 1MB).

 

Lorillard Tobacco Co. v. Reilly 533 U.S. 525 (2001)

Issue

The issue in this case was whether a federal statute and the United States Constitution invalidated Massachusetts regulations that restricted the advertising of tobacco products.

AMA interest

The AMA, in keeping with its objective of protecting public health, supports a smoke-free America.

Case summary

The regulations prohibited outdoor advertising and certain types of point-of-sale advertising of tobacco products within a thousand-foot radius of any public playground, elementary school, or secondary school. The regulations also required mandatory warning statements on all cigar labeling and advertising.  The tobacco companies sued to have the regulations declared invalid.  Their primary contention was that the regulations violated the Federal Cigarette Labeling and Advertising Act (FCLAA).  They also claimed that the regulations violated their First Amendment right to free speech and the Commerce Clause. 

The United States Supreme Court held that some of the regulations were valid, but others violated the FCLAA and/or the First Amendment.

Litigation Center involvement

The Litigation Center, along with the Massachusetts Medical Society and several other not for profit organizations, filed an amicus curiae brief to support the regulations. 

View the brief (PDF, 78KB).

People v. R.J. Reynolds, 124 P.3d 408, 36 Cal. Rptr.3d 814 (Cal. 2005)

Issues

The issues in this case were whether distribution of free cigarettes in a private booth on public grounds violated a California statute, whether federal law preempted the California statute, and whether a fine against the tobacco company of almost $15 million was reasonable.

AMA interest

The AMA, in keeping with its objective of protecting public health, supports a smoke-free America.

Case summary

The trial court found that R.J. Reynolds had violated a California statute, which prohibits the distribution of free cigarettes on public grounds.  It was fined almost $15 million.  R.J. Reynolds argued that (i) the distribution of free cigarettes to adults in a guarded, private booth on public grounds did not violate the distribution ban, (ii) the Federal Cigarette Labeling and Advertising Act of 1965, 15 U.S.C. § 1334(b), preempted the state prohibition, and (iii) the civil penalty assessed against it was "grossly disproportional" to its violation.

The California Supreme Court reversed and remanded.  It held that the distribution of cigarettes did violate the statutory ban and that the Federal Cigarette Labeling and Advertising Act did not preempt the state law.  However, the Supreme Court found it unclear from the record whether the penalty was grossly disproportionate to the offense, in violation of the Eighth and Fourteenth Amendments to the United States Constitution and comparable provisions of Article I of the California Constitution.  The Supreme Court directed the trial court to make further findings on and reconsider the proportionality issue.

Litigation Center involvement

The Litigation Center joined a brief as amicus curiae with the California Medical Association, supporting the State of California against R.J. Reynolds.  The amicus brief argued that the California statutory prohibition did not create an exception for private booths.  The brief also emphasized the societal harm arising from allowing children to access cigarettes freely.

View the brief (PDF, 173KB).

 

Philip Morris v. Reilly, 312 F.3d 24 (1st Cir. 2002)

Issue

The issue in this case was whether a Massachusetts statute requiring tobacco companies to disclose “additives” in their cigarettes was valid under the United States Constitution.

AMA interest

The AMA, in keeping with its  objective of protecting public health, supports a smoke-free America.

Case summary

The Commonwealth of Massachusetts passed a “Disclosure Act” that requires cigarette companies to disclose the “additives” in their cigarettes.  These additives are the ingredients other than tobacco, water, and reconstituted tobacco sheet that give the tobacco products their distinctive taste and aroma.  The additives were to be disclosed to the Massachusetts Department of Public Health, which would then disclose the information generally, unless such disclosure would reveal a trade secret.

The major cigarette companies sued the Massachusetts Attorney General, Thomas F. Reilly, for an injunction against enforcement of the Disclosure Act.  The cigarette companies claimed that the required disclosure would violate the United States Constitution in three ways:  (1) it would effect an uncompensated taking of property by the state in violation of the Fifth and Fourteenth Amendments; (2) it would deprive the tobacco companies of valuable property without procedural due process in violation of the Fourteenth Amendment; and (3) it would constitute an improper encroachment by the Commonwealth into the domain of interstate commercial regulation that the Commerce Clause reserves to the national government.

The trial court granted summary judgment for the tobacco companies.  The Massachusetts Attorney General appealed this decision.  The United States Court of Appeals for the First Circuit, sitting en banc, affirmed the district court and held the Massachusetts statute unconstitutional.

Litigation Center involvement

The Litigation Center joined the Massachusetts Medical Society and several other public interest organizations in an amicus brief to support the Disclosure Act.  The brief argued that forcing a company to disclose noxious ingredients in its products should not be considered an unconstitutional “taking” of that company’s property.

View the brief (PDF, 196KB).

 

Price v. Philip Morris USA, 848 N.E.2d 1 (Ill. S. Ct. 2005)

Issue

The issue in this case was whether Philip Morris had deceptively advertised and sold its “light” cigarettes.

AMA interest

The AMA, in keeping with its objective of protecting public health, supports a smoke-free America.

Case summary

In this class action, the trial judge had entered a judgment of approximately $10 billion against Philip Morris for its advertising and sale of Marlboro Lights and Cambridge Lights.  Allegedly, the marketing descriptions "lights" and "lowered tar and nicotine" deceived smokers into believing those cigarettes delivered less tar and nicotine and were therefore less hazardous than their full flavored counterparts.  The trial court specifically found that Philip Morris knew that its light cigarettes delivered as much tar and nicotine as regular cigarettes to the average smoker.  Philip Morris appealed directly to the Illinois Supreme Court.

The Illinois Supreme Court reversed the trial court judgment.  The Illinois statute underlying the plaintiffs’ claim provided that deceptive business practices are non-actionable if “specifically authorized by laws administered by any [governmental] regulatory body or officer.”  Based on two administrative consent orders between the Federal Trade Commission and tobacco companies other than Philip Morris, neither of which consent order mentioned the term “light” or the phrase "lowered tar and nicotine," the court held that Philip Morris’ advertising had been “specifically authorized by laws.”

Litigation Center involvement

The Litigation Center, along with the Illinois State Medical Society and several public health organizations, filed a brief as amicus curiae in the appeal.  The brief emphasized the AMA's endorsement of the scientific findings in National Cancer Institute Monograph 13 - Risks Associated with Smoking Cigarettes with Low Machine-Measured Yields of Tar and Nicotine.  This monograph determined that smokers modify their smoking practices to compensate for any "lightness" in the design of cigarettes, in order to consume the same dose of nicotine (and the tars associated with the nicotine) as in a full flavored cigarette. 

View the brief (PDF, 1MB).

 

Rowe v. New Hampshire Motor Transport Association, 128 S.Ct. 989 (2008)

The State of Maine passed a law ( the Maine Tobacco Delivery Law) to prevent interstate air and motor carriers (such as United Parcel Service) from delivering tobacco products to minors.  Several trade associations sued G. Steven Rowe, Attorney General for the State of Maine, to have the law declared invalid.  They contended that the Federal Aviation Administration Authorization Act of 1994 (the FAAAA) preempted state laws, such as the Maine Tobacco Delivery Law, which imposed conditions on the way that interstate carriers could deliver packages.

Both the district court and the United States Court of Appeals for the First Circuit held the Maine Tobacco Delivery Law to be preempted.  However, the Maine Attorney General appealed to the Supreme Court. The Supreme Court affirmed, also finding the Maine statute preempted.

Litigation Center involvement

The Litigation Center and the Maine Medical Association, and several public health organizations filed an amicus curiae brief on behalf of the Maine Attorney General, arguing that the FAAAA did not preempt the Maine Tobacco Delivery Law.



 

Tacoma-Pierce County Board of Health v. Entertainment Industry Coalition, 153 Wash.2d 657, 105 P.3d 985, 2005 Wash. LEXIS 183 (Wash. S. Ct. 2005)

Issue

This issue in this case was whether an ordinance banning smoking in most indoor public places was preempted by a state “clean indoor air” statute.

AMA interest

The AMA, in keeping with its objective of protecting public health, supports a smoke-free America.

Case summary

The Tacoma-Pierce County Board of Health and Tacoma-Pierce County Health Department (together, the "County") passed a resolution banning smoking in most indoor public places, including places of employment.  The Entertainment Industry Coalition (EIC), challenged the anti-smoking resolution, claiming that it was preempted by Washington's Clean Indoor Air Act and was thus invalid.  The trial court enjoined the County from enforcing the anti-smoking resolution, and the County appealed directly to the Washington Supreme Court.

The Washington Supreme Court affirmed, holding that the state law allows business proprietors to designate public smoking areas.  The anti-smoking resolution, by purportedly denying such right, conflicted with state law and was therefore invalid.

Litigation Center involvement

The Litigation Center, the Washington State Medical Association, and several other anti-tobacco organizations filed an amicus curiae brief supporting the anti-smoking resolution.

View the brief (PDF, 68KB).

 

United States v. Philip Morris (D.C. Cir.), 449 F.Supp.2d 1 (D.D.C. 2006)

Issue

The issue in this case is whether the trial court was correct in entering judgment against tobacco companies for violations of the Racketeer Influenced and Corrupt Organizations Act (“RICO”).

AMA interest

The AMA, in keeping with its objective of protecting public health, supports a smoke-free America.

Case summary

The United States Department of Justice (“DOJ”) sued several large tobacco companies under RICO, alleging that the cigarette companies had conspired to: (1) mislead the public about the dangers of smoking, (2) mislead the public about the dangers of secondhand smoke, (3) misrepresent the addictiveness of nicotine, (4) manipulate the nicotine delivery of cigarettes, (5) deceptively market cigarettes characterized as “light” or “low tar,” while knowing that those cigarettes were at least as hazardous as full flavored cigarettes, (6) target the youth market, and (7) not produce safer cigarettes.  In addition to monetary damages, the DOJ sought equitable relief, under which the cigarette manufacturers would be required to remedy their past behavior by revising their marketing practices and by educating the public about the dangers of cigarette smoking.

After a nine month trial, with testimony from hundreds of witnesses, the trial court issued a nearly 1700 page decision and entered judgment against the tobacco companies.  The court found violations under RICO and ordered extensive injunctive relief to remedy the tobacco companies’ numerous misstatements and deceptions regarding the dangers of cigarette smoking.  However, the court did not order the full relief that the plaintiffs had requested.  Both sides appealed.

Litigation Center involvement

The Litigation Center, along with the Mississippi State Medical Association and several specialty medical societies, filed an amicus curiae brief to support the United States and the intervenor plaintiffs.  The brief pointed out that, even after the trial, the tobacco companies continue to misrepresent the nature of their products and to market them in violation of the lower court’s order.  The brief argued that the remedies ordered by the lower court will be inadequate to prevent the tobacco companies’ ongoing racketeering activities.

View the brief (PDF, 104KB).

Last updated:Jul 21, 2008
Content provided by: Office of the General Counsel