Monday, June 8, 2009

Tobacco, the FDA, and Preemption

Op-ed in today's Wall Street Journal -- Tobacco and the Tort Bar, by Mark H. Berlind.  Here's an excerpt:

Congress is on the verge of passing sweeping legislation that would empower the Food and Drug Administration (FDA) to regulate tobacco products. Antitobacco activists are cheering, while some tobacco companies are raising the specter of First Amendment violations. Lost in the debate is the fact that this bill will continue to allow consumers to sue manufacturers that fully comply with the FDA's content and labeling rules.


Today's legislation would impose strict limits on tobacco advertising and labeling, mandate stronger warning labels, and require advance FDA approval of any reduced-risk claims. It would also empower the FDA to change cigarettes' content to make them less addictive and lethal.

However, in a little-noticed provision, the bill also expressly provides that "no provision of this chapter . . . shall be construed to modify or otherwise affect . . . the liability of any person under the product liability law of any State." In other words, the regulatory regime that the legislation would establish can't protect companies from tort liability -- even if they rigorously follow every FDA rule.


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Texas tobacco lawyers now file class action in Arkansas over light cigarettes

7/9/2009 10:30 AM
By Michelle Massey, Texarkana Bureau

LITTLE ROCK, Ark. - Some of the attorneys known as the Texas Tobacco 5 are now involved in new litigation in Arkansas over tobacco company claims regarding light cigarettes.

Beaumont attorney Walter Umphrey and Houston lawyer John Eddie Williams Jr. made millions in legal fees representing the state of Texas against tobacco companies in 1998.

This month they joined Little Rock attorney Thomas P. Thrash as plaintiffs' counsel on a proposed Arkansas class action against several tobacco companies alleging the companies falsified the benefits of smoking light cigarettes.

The proposed class is represented by Little Rock resident David Hunter Williams, who says he switched from regular to light cigarettes as an alternative to quitting smoking. He claims he believed the light cigarettes were less harmful and delivered less tar and nicotine.

David Williams says current attempts to stop smoking altogether are difficult because of his addiction to the nicotine found in the light cigarettes.

The suit, filed July 6 in the Little Rock Division of the Western District of Arkansas, alleges cigarette makers Philip Morris USA, Altria Group Inc., R.J. Reynolds Tobacco Co. and Reynolds American Inc. participated in a "scheme of deception."

The consumer class action will include all Arkansas residents who from July 1, 2004, until the end of the litigation, purchased cigarettes labeled as "light" or "ultra-lights."

The lawsuit seeks economic damages arising from their purchases and does not seek damages for personal injury or health care.

The suit alleges that the defendants knew that their representations that light cigarettes delivered less nicotine and were less harmful were false, deceptive, misleading and unfair.

In addition, the suit alleges the defendants designed their light cigarettes to register lower levels of tar and nicotine when tested than the levels actually delivered to consumers.

The plaintiff argues that the defendants intentionally manipulated the design and content "by modifying the tobacco blend, weight, rod length, and circumference, using reconstituted tobacco sheets and expanded tobacco; and by increasing the smoke PH levels of the cigarettes through chemical processing and the use of additive such as ammonia, resulting in the delivery of great amounts of tar and nicotine."

The defendants are accused of breaching express and implied warranties, violating the Arkansas Deceptive Trade Practices Act, unjust enrichment, and fraudulently concealment.

According to court documents, the National Cancer Institute states that smokers will compensate for the lower level of nicotine in light cigarettes by inhaling more deeply, taking larger, more rapid, or more frequent puffs, and smoke extra cigarettes each day.

The National Cancer Institute also states that, "researchers also found that the strategies used by the tobacco industry to advertise and promote light cigarettes are intended to reassure smokers, to discourage them from quitting, and to lead consumers to perceive filtered and light cigarettes as safer alternatives to regular cigarettes."

On Dec. 15, 2008, the U. S. Supreme Court decided in a 5-4 ruling that federal labeling laws did not protect cigarette manufacturers from lawsuits accusing them of deceptive marketing and defrauding consumers by describing cigarettes as "light" or "low tar."

The Supreme Court also ruled that the Federal Trade Commission's oversight of cigarette testing did not preclude those lawsuits.

The FTC withdrew its support of the testing in November 2008 and said the testing methods are "confusing or misleading to consumers."

The lawsuit seeks a restitution of money paid at retail for light cigarettes, disgorgement of profits, and the establishment of a constructive trust to reimburse the class for economic damages and to establish a smoker cessation program.

Seeking punitive damages, the plaintiffs argues that the defendants actions were "willful and malicious, and were of such a depraved nature as to evince a wanton disregard for the lives and health of Plaintiff and the class."

U.S. District Judge James M. Moody will preside over the litigation.

Case No: 4:09cv00471

Posted by: CRM | Jul 14, 2009 11:26:47 AM

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