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Anti-Tobacco

23-34 94th St. Grocery Corp. v. New York City Board of Health, 685 F.3d 174 (2nd Cir. 2012)

Outcome:    Very unfavorable

Issue

The issue in this case was whether an ordinance requiring retail outlets selling tobacco products to post city-provided graphic warning signs was valid under the First Amendment.

AMA interest

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

Case summary

New York City passed an ordinance requiring that retail outlets selling tobacco products post city-provided graphic warning signs.  A number of retailers brought suit to challenge the validity of the ordinance under the First Amendment.

The trial court found the anti-smoking ordinance pre-empted by the 1965 Federal Cigarette Labeling and Advertising Act (FCLAA) and thus invalid.  It entered summary judgment for the plaintiffs.

New York City appealed, but on July 10, 2012 the Second Circuit affirmed, finding that the FCLAA preempted the city ordinance.

AMA involvement

The AMA, along with several other anti-smoking organizations, filed amicus briefs in the district court and in the court of appeals to support the ordinance.

United States District Court brief.

Second Circuit brief.

Altria Group v. Good, 555 U.S. 70 (2008)

Outcome:    Very favorable

Issue 

The issue in this case was whether the consent decrees of the Federal Trade Commission (“FTC”) or the Federal Cigarette Labeling and Advertising Act (the Labeling Act) preempted 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 class action sued under Maine’s Unfair Trade Practices Act, alleging that Philip Morris had deceived consumers by using the terms “light” and “lowered tar and nicotine” in marketing Marlboro Lights cigarettes.  They asserted that these descriptors were deceptive because smokers of such cigarettes would generally compensate for the lower tar and nicotine levels, by, for example, taking deeper puffs or smoking more.  The Marlboro Lights smokers would thus 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 Federal Cigarette Labeling and Advertising Act.  The defendants also argued that plaintiffs’ state law unfair trade practices claims conflicted with the Federal Trade Commission’s regulatory approach as to the proper marketing of “light” and “low tar” cigarettes and were thus  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 defendants  appealed to the United States Supreme Court, which held, by a split decision, that the Maine law had not been preempted.

Litigation Center involvement

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

United States Supreme Court brief

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

Outcome:    Favorable

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. 

Montana Supreme Court brief.

Bartec v. Wymsylo, 2012 Ohio 2187 (Ohio 2012)

Outcome:     Very Favorable

Issue

The issue in this case was whether businesses and their owners could be held liable for violations of the Ohio Smoke Free Workplace Act (the Smoke Free Act) and the regulations that implement it.

AMA interest

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

Case summary

The Smoke Free Act prohibits smoking in public places, including places of employment. The implementing regulations to the Smoke Free Act require that businesses and their proprietors take reasonable steps to ensure that smoking does not occur within or directly adjacent to the business premises.

Bartec is a restaurant in Columbus, Ohio. The Ohio Department of Health (ODH) fined Bartec for ten violations of the Smoke Free Act. ODH then sued Bartec to secure a legal judgment based on the ten imposed fines and for an injunction to prohibit future violations of the Smoke Free Act. In defense, Bartec claimed that the Smoke Free Act and its implementing regulations are unconstitutional. It contended that the law imposed liability on it for smoking by its patrons, activity beyond its control.

The trial court found in favor of Bartec. It vacated the fines and denied the requested injunction. ODH then appealed to the Ohio Court of Appeals which reversed and remanded. It found that neither the language of the Smoke Free Act nor the regulations passed under it imposed strict liability on businesses.

Bartec appealed to the Ohio Supreme Court. On May 23, 2012, the Supreme Court affirmed the Court of Appeals, finding the Smoke Free Act valid.

Litigation Center involvement

The Litigation Center, along with the Ohio State Medical Association and several other public health organizations, filed an amicus curiae brief to support the Smoke Free Act.

Ohio Supreme Court brief

Beachfront Entertainment v. Town of Sullivan's Island, 666 S.E.2d 912 (S.C. 2008)

Outcome:    Favorable

AMA interest

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

Case summary

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

On September 8, 2008, the Supreme Court reversed in part and affirmed in part.  It held that, to the extent the ordinance made smoking illegal as a civil matter, it was not preempted.  However, because the ordinance imposed a criminal penalty, it was to that extent inconsistent with state law and was thus preempted.

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 supporting the anti-smoking ordinance.

South Carolina Supreme Court brief.

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

Outcome:    Very unfavorable

Issue

The issue in this case was whether county boards of health in Ohio had the authority to prohibit smoking in public places.

AMA interest

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

Case summary

The Toledo-Lucas County Board of Health passed an ordinance 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 may be better situated than the Ohio General Assembly to protect public health in this type of situation.  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.

Litigation Center involvement

The Litigation Center and the Ohio State Medical Association, along with several other public interest groups filed an amicus brief in the Ohio Supreme Court.  The brief argued that secondhand smoke is a public health hazard and therefore justifies its regulation by the Toledo-Lucas County Board of Health.

Ohio Supreme Court brief.

 

Discount Tobacco City/Commonwealth Brands v. United States, 185 L.Ed.2d 865 (2013)

674 F.3d 509 (6th Cir. 2012), 678 F.Supp.2d 512 (W.D. Ky. 2010)

Outcome:     Favorable

Issue

The issue in this case was whether the Family Smoking Prevention and Tobacco Control Act (the FSMPTCA) is constitutional. 

AMA interest

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

Case summary

The FSMPTCA empowers the Food and Drug Administration (FDA) to regulate tobacco products and imposes severe restrictions on the marketing of tobacco products.  Several tobacco companies sued to have parts of the FSMPTCA declared unconstitutional.  The tobacco companies contend that the marketing restrictions violate their right of free speech under the First Amendment and constitute a "taking" and deprivation of due process under the Fifth Amendment.

On cross-motions for summary judgment, the trial court ruled that most of the FSMPTCA is constitutional.  However, it struck down certain of the advertising restrictions as unreasonable infringements of the tobacco companies' First Amendment rights. Both sides appealed to the Sixth Circuit.

On March 19, 2012, the Sixth Circuit affirmed most of the trial court rulings that had upheld the majority of the FSMPTCA.  However, the Sixth Circuit found that a statutory ban on tobacco companies’ “continuity programs” (distribution of non-tobacco items for promotional purposes) was unconstitutional (reversing the trial court on this point).  Likewise, the Sixth Circuit found a statutory prohibition on statements by tobacco companies that their products compiled with FDA regulations was unconstitutional (again reversing the trial court on this point).  The tobacco companies asked for a rehearing, but that motion was denied.

The tobacco companies petition for certiorari was denied on April 22, 2013.

Litigation Center involvement

The Litigation Center, along with the Kentucky Medical Association and several other public health organizations, filed two amicus curiae briefs in support of the FSMPTCA in the trial court.  The amici also filed a brief in the Sixth Circuit.

Initial United States District Court brief (preliminary injunction).

Second United States District Court brief (summary judgment)

Sixth Circuit Court brief.

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

Outcome:    Very unfavorable

Issue

The issue in this case was whether tobacco companies could be held liable to cigarette smokers through class action litigation.

AMA interest

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

Case summary

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 brief to urge recertification of the plaintiff class.

Florida Supreme Court brief.

Evans v. Lorillard Tobacco Co., 465 Mass. 411 (Mass. 2013)

Outcome:    Unfavorable

Issue

The issue in this case was whether Lorillard Tobacco Company should be held liable for selling mentholated cigarettes, targeted toward African-American children.

AMA interest

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

Case summary

Marie Evans, an African-American, grew up in a public housing project in Roxbury, Massachusetts.  In the late 1950s and early 1960s, Lorillard gave away samples of mentholated cigarettes to children living in the project, including Ms. Evans.  She became addicted and ultimately died from smoking related cancer.

The trial court awarded her estate $25 million in compensatory damages and $81 million in punitive damages.  It also awarded her son $10 million.  Lorillard appealed to the Massachusetts Supreme Judicial Court.

In June 2013, the Supreme Judicial Court reversed on a number of issues and remanded for further determinations in the trial court.

AMA involvement

The AMA, along with numerous other anti-smoking organizations, filed an amicus brief, which emphasized the addictive nature of menthol cigarettes and their propensity for causing cancer and other diseases.

Massachusetts Supreme Judicial Court brief

 

Food and Drug Administration v. Brown & Williamson Tobacco Corp.

529 U.S. 120 (2000)

Outcome:    Very unfavorable

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

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.

United States Supreme Court brief

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

Also under Abusive litigation against physicians

Outcome:    Very favorable

Issue
The issue in this case was whether a physician could be sued personally 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.

Indonesia v. United States (World Trade Organization)

Outcome:     Very unfavorable

Issue

The issue in this case was whether the ban or importation of clove flavored cigarettes in the Food, Drug, and Cosmetics Act (FDCA) violates the General Agreement on Tariffs and Trade (GATT) and the Technical Barriers to Trade (TBT) Agreement, because the FDCA allows the importation of menthol flavored cigarettes.

AMA interest

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

Case summary

The Government of Indonesia (which exports cloves) contended that the FDCA violated both the GATT and the TBT because it arbitrarily discriminated against some cigarette flavoring.  A World Trade Organization (WTO) panel ruled that the flavoring ban is justified from a public health standpoint.  It also ruled, however, that the ban violated the TBT, because it arbitrarily discriminated between flavorings.  The case was appealed to the WTO appeals body.

The WTO appeals body upheld the ruling of the prior panel, forcing the United States to lift its ban on the importation of cigarette flavorings.

AMA involvement

At the request of the Office of the United States Trade Representative, several health care organizations, including the AMA, filed an amicus brief before the WTO in support of the FDCA ban.  The position of the brief is that even a partial ban on cigarette flavorings is a desirable public health measure.

World Trade Organization brief

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

Outcome:    Favorable

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. 

Kentucky Supreme Court brief.

Lorillard Tobacco Company v. American Legacy Foundation

903 A.2d 728 (Del. 2006)

Outcome:    Very favorable

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, and so the advertisements here should not, in context, be deemed vilifying.

Supreme Court of the State of Delaware brief.

Lorillard v. FDA (D.D.C.)

AMA interest

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

Case summary

The Food and Drug Administration formed the Tobacco Products Scientific Advisory Committee (TPSAC) to advise it on technical issues relating to the regulation of tobacco products.  Several large tobacco companies sued the FDA, alleging bias and conflicts of interest among the TPSAC members. 

The FDA has moved to dismiss the lawsuit for failure to state a cause of action.  The FDA contends that the TPSAC meets the Congressionally established criteria for its composition, and in any event the tobacco companies’ claim is nonjusticiable.

AMA involvement

The AMA, along with several other anti-smoking organizations, filed an amicus curiae brief in support of the FDA motion.

United States District Court brief.

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

Outcome:    Neutral

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 their right to engage in interstate commerce. 

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. 

United States Court of Appeals for the First Circuit brief.

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

Outcome:    Favorable

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 a tobacco company of almost $15 million for violation of the statute 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.

California Supreme Court brief.

Philip Morris v. City and County of San Francisco, 345 Fed.Appx. 276 (9th Cir. 2009)

Outcome:     Very favorable

Issue
The issue in this case is whether a city and county ordinance prohibiting the sale of tobacco products in stand-alone pharmacies is valid.

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

Case summary

The City and County of San Francisco enacted an ordinance that prohibits the sale of tobacco products in stand-alone pharmacies.  Philip Morris sued to have the ordinance declared invalid, asserting that (1) the ordinance violated its First Amendment right to communicate information about its products and (2) the ordinance violated the Federal Cigarette Labeling and Advertising Act, which preempts state and local laws that regulate cigarette advertising.

Philip Morris moved for a preliminary injunction, but the United States District Court denied that motion, finding that Philip Morris did not have a substantial likelihood of success on the merits.  It observed that the ordinance regulated the sale of tobacco products, but it did not prohibit advertising.  Thus, the ordinance did not substantially affect Philip Morris' communication rights.

Philip Morris appealed the denial of the preliminary injunction to the Ninth Circuit.  However, the court affirmed, finding that the San Francisco ordinance did not unduly burden "expressive activity."

Litigation Center involvement
The Litigation Center, along with the Tobacco Control Legal Consortium and other anti-smoking organizations, submitted an amicus brief arguing that tobacco products should not be sold in pharmacies and that such sales conflict with pharmacists’ code of ethics.

United States Court of Appeals for the Ninth Circuit brief

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

Outcome:     Very unfavorable

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.

United States Court of Appeals for the First Circuit brief.

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

Outcome:     Very unfavorable

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. 

Illinois Supreme Court brief.

RJ Reynolds v. FDA, 2012 U.S. App. LEXIS 24978 (D.C. Cir.)

696 F.3d 1205 (D.C. Cir. 2012), 845 F.Supp.2d 266 (D.D.C. 2012), 823 F.Supp.2d 36 (D.D.C. 2011)

Outcome:    Very unfavorable


AMA interest

The AMA supports a smoke-free America.

Case summary

Pursuant to the Family Smoking Prevention and Tobacco Control Act, the Food and Drug Administration (FDA) issued a regulation that would require tobacco companies to display enhanced warnings of the danger of tobacco usage on their cigarette packaging and in their advertising.  These warnings would include textual statements along with emotionally charged graphic images.  The new warnings were to occupy the top half of both sides of the cigarette packaging and the top fifth of cigarette advertising.

Several large tobacco companies sued the FDA and the Department of Health and Human Services for an injunction against the regulation.  They alleged that the labeling requirement would violate their First Amendment rights and that the FDA had passed the regulation without following all the steps mandated in the Administrative Procedure Act.  The plaintiffs moved for a preliminary injunction to prevent enforcement of the FDA regulation, and this motion was granted.  They then moved for summary judgment and a permanent injunction, and this motion was also granted.

The government appealed to the United States Court of Appeal for the District of Columbia Circuit.  By a split decision, the Court of Appeals affirmed the trial court and ordered that the case be remanded to the FDA for further consideration.  The FDA petitioned for rehearing and rehearing en banc, but both petitions were denied.

AMA involvement

The AMA and several other anti-tobacco organizations filed two trial level amicus memorandums and a brief in the D.C. Circuit to support the FDA regulation.

United States District Court memorandum supporting the FDA regulation 

United States District Court memorandum in opposition to plaintiffs’ motion for summary judgment 

Court of Appeals brief

Rowe v. New Hampshire Motor Transport Association, 552 U.S. 364 (2008)

Outcome:     Very unfavorable

Issue

The issue in this case was whether the Federal Aviation Administration Authorization Act of 1994 (the FAAAA) preempted a state law that prohibited air and motor carriers from delivering of tobacco products to minors.

AMA interest

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

Case summary

The State of Maine passed a law (the Maine Tobacco Delivery Law) to prevent 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 FAAAA preempts state laws, such as the Maine Tobacco Delivery Law, that impose conditions on the delivery of packages by interstate carriers.

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

United States Supreme Court brief.

Smoking Everywhere v. Food and Drug Administration, 617 F.3d 891 (D.C. Cir. 2010)

680 F.Supp.2d 62 (D.D.C. 2010)

Outcome:    Very unfavorable

Issue

The issue in this case was whether the Food and Drug Administration (FDA) has jurisdiction to regulate electronic cigarettes (e-cigarettes).

AMA interest

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

Case summary

The trial court held that the FDA lacks jurisdiction to regulate e-cigarettes under the “drug and device” provisions of the Federal Food, Drug, and Cosmetic Act.  It entered a preliminary injunction prohibiting such regulation.  The trial court noted that the FDA might have authority to regulate e-cigarettes as tobacco products, but this would invoke a different regulatory standard than that pertaining to drugs and medical devices, and the FDA had not claimed such power.  The FDA appealed this ruling to the Court of Appeals.

The Court of Appeals affirmed the trial court's holding that the FDA lacked jurisdiction under the drug and device provisions of the Food, Drug, and Cosmetic Act.  The FDA petitioned for hearing en banc, but that motion was denied.

AMA involvement

The AMA, along with several other anti-smoking organizations, filed an amicus curiae brief in the District of Columbia Circuit Court of Appeals.

United States Court of Appeals for the District of Columbia Circuit brief.

Tacoma-Pierce County Board of Health v. Entertainment Industry Coalition, 105 P.3d 985 (Wash. 2005)

Outcome:    Very favorable

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.

Washington Court of Appeals brief.

Tobacco Use and Control Foundation v. Boyce, 941 N.E.2d 745 (Ohio 2010)

Outcome:    Very unfavorable

Issue 

The issue in this case was whether the State of Ohio could legally direct divert funds that had been dedicated to tobacco prevention and control into the state’s general revenues.

AMA interest

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

Case summary

Under a Master Settlement Agreement, the State of Ohio received payments from manufacturers of tobacco products.  Some of their money was paid to the Tobacco Use and Control Foundation (the Foundation), which funded projects to prevent and control tobacco usage.  However, the legislature subsequently enacted a law to divert the funds for other purposes.  The Foundation sued to recover the money, claiming it was an irrevocable charitable trust.  The trial court ruled against the Foundation, which appealed.

Both the Ohio Court of Appeals and the Ohio Supreme Court held that the Ohio General Assembly had plenary power to revoke or transfer public funds, including the funds that had been dedicated to the Foundation.  Thus, the trial court was affirmed.

Litigation Center involvement

The American Medical Association, along with the Ohio State Medical Association and several other public health organizations, filed an amicus curiae brief in support of the Foundation.

Ohio Supreme Court brief.

 

United States v. Philip Morris 556 F.3d 1095 (D.C. Cir. 2009)

449 F.Supp.2d 1 (D.D.C. 2006)

Outcome:    Somewhat unfavorable

Issue

The issue in this case was whether several major tobacco companies had violated 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 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 tobacco companies 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 requested.  Both sides appealed.

The Court of Appeals affirmed the principal rulings of the lower court.

Litigation Center involvement

The Litigation Center, along with several other medical societies, filed an amicus curiae brief in the Court of Appeals to oppose the tobacco companies.  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 would be inadequate to prevent the tobacco companies’ ongoing racketeering activities.

United States Court of Appeals for the District of Columbia Circuit brief