Legal UpdateContents

Features

Infiltration of Secondhand Smoke into Condominiums, Apartments and Other Multi-Unit Dwellings: 2009

Tobacco in the Courts

Philip Morris Ordered to Pay $300 Million to Ex-Smoker

Philip Morris Drops Suit Over San Francisco Tobacco Sales Ban

Landmark Tobacco Ruling Allows Medical Monitoring of Smokers

Tobacco Product Regulation

U.S. and Canada Ban “Flavored Cigarettes”

FDA Warns Web Companies About Illegal Flavored Cigarettes

Federal Judge Rejects Challenge to Tobacco Marketing Regulations

Departments

Ask A Lawyer

Profiles in Public Health Law

Eric Lindblom: Tobacco Law & Policy Expert

Resource Roundup

The Global Perspective

WHO Kicks Off Tobacco Control Campaign in Africa

Upcoming Events

Fall 2009Tobacco Control Legal Consortium | www.tclconline.org

Season’s greetings! As 2009 draws to a close, the tobacco control community looks back on a year of significant progress in smoke-free legislation and tobacco product regulation. To date, nineteen states, including Washington, D.C. and Puerto Rico, have laws in effect prohibiting smoking in workplaces and public places, protecting 41.2 percent of the U.S. population.

Also, this year marked the passage of the Family Smoking Prevention and Tobacco Control Act, the government’s sweeping legislation to regulate tobacco and reduce what remains the leading preventable cause of death in the United States. Although challenges and opportunities in smoke-free and tobacco product regulation remain – locally, nationally and globally – this has still been a year of exciting growth and achievement in U.S. tobacco control.

Infiltration of Secondhand Smoke into Condominiums, Apartments and Other Multi-Unit Dwellings: 2009The latest in the Tobacco Control Legal Consortium’s series of legal overviews on key legal issues affecting the tobacco control community is an expansion and update of our popular 2004 law synopsis, Infiltration of Secondhand Smoke into Condominiums, Apartments and Other Multi-Unit Dwellings. This synopsis provides information on recent smoke-free housing laws and policies of interest to landlords, condominium associations, and tenants. It also includes smoke-free language to use in a lease or condominium bylaws.

Susan Schoenmarklin, author of the original 2004 edition and a consulting attorney for the Smoke-free Environments Law Project, wrote this 2009 update. It can be found online at www.tclconline.org under Tobacco Control Legal Consortium, “Resources and Publications.” As always, we hope you find our publication a useful and informative resource in your work as a tobacco control professional.

» Browse our seventeen other law synopses on issues ranging from smoking regulation to tobacco sales practices.

2 Tobacco in the Courts

Philip Morris Ordered to Pay $300 Million to Ex-Smoker

A Fort Lauderdale jury ordered Philip Morris to pay nearly $300 million ($55 million in compensatory damages and $244 million in punitive damages) to a 61-year-old former smoker with emphysema, who may need a lung transplant as the result of smoking. The verdict is the largest so far of the many so-called Engle (PDF, 250 Kb) progeny cases, named after a major Florida Supreme Court ruling in 2006 (PDF, 250 Kb) that lowered a plaintiff’s burden of proof against a tobacco company and made it easier to pursue tobacco lawsuits in Florida than in other states. Of the ten verdicts this year in Engle progeny cases, eight have been for the plaintiffs. Thousands of related cases have been filed and are awaiting trial in Florida.

» Read the recent decision in Naugle v. Philip Morris USA (PDF, 599 Kb)

» For more information on Engle v. R. J. Reynolds (PDF, 250 Kb), see our Legal Updates Spring 2009 (PDF, 1.5 Mb), September/October 2007 (PDF, 1 Mb) and July 2006 (PDF, 240 Kb).

Landmark Tobacco Ruling Allows Medical Monitoring of Smokers

The Massachusetts Supreme Judicial Court recently ruled that cigarette smokers who have no apparent injury but are at increased health risk due to their smoking can bring a class action lawsuit to pay for medical monitoring to scan for cancer that may develop in the future. The court pointed out that “exposure to toxic substances and radiation may cause substantial injury which should be compensable even if the full effects are not immediately apparent.” Until now, many states have rejected medical monitoring as a remedy in cigarette litigation.

» Read the decision in Donovan v. Philip Morris USA, Inc.

Philip Morris Drops Suit Over San Francisco Tobacco Sales Ban

Philip Morris recently dropped its lawsuit challenging a year-old law prohibiting the sale of tobacco products in almost sixty San Francisco pharmacies. On October 15, the U.S. District Court for the Northern District of California dismissed the case, at the request of both the tobacco company and the City of San Francisco. The ordinance, which took effect October 1, is the first of its kind in the nation. On Sept. 9, the Ninth U.S. Circuit Court of Appeals ruled unanimously that the city’s ban does not restrict freedom of expression, as Philip Morris argued. In affirming the federal district court’s denial of an injunction against the ordinance, the court wrote “Plaintiff’s advertising speech is protected activity. Selling cigarettes isn’t.”

» Read the Tobacco Control Legal Consortium’s amicus brief supporting the City of San Francisco in this case. PDF, 128 Kb

3Tobacco Product Regulation

U.S. and Canada Ban “Flavored Cigarettes”Both the United States and Canada have recently banned the sale, distribution and manufacture of cigarettes that contain flavors other than tobacco or menthol. Under the Family Smoking Prevention and Tobacco Control Act, the Food and Drug Administration’s ban on “flavored cigarettes” took effect September 22, 2009. The U.S. ban applies to all products that meet the definition of a cigarette in section 900(3) of the Act, even if they are not labeled as “cigarettes” or are labeled as cigars or some other product. This includes cigarettes or any of their component parts that contain “an artificial or natural flavor (other than tobacco or menthol) or an herb or spice, including strawberry, grape, orange, clove, cinnamon, pineapple, vanilla, coconut, licorice, cocoa, chocolate, cherry, or coffee, that is a characterizing flavor of the tobacco product or tobacco smoke.”

» Visit the FDA website on flavored tobacco products.

» Read the Legal Consortium’s series of fact sheets on the FDA tobacco legislation.

On October 9, Canada’s law prohibiting the manufacture, sale or importation of most flavored cigarettes and small cigars, took effect. Unlike the U.S. “flavored tobacco” ban, the Canadian law also applies to small cigars. Neither ban covers menthol-flavored cigarettes. The Canadian law prohibits tobacco advertising in newspapers and magazines, as well.

» Read the Canadian law, “Cracking Down on Tobacco Marketing Aimed at Youth Act.”

FDA Warns Web Companies About Illegal Flavored Cigarettes

In related news, the FDA recently sent warning letters to more than a dozen Web-based companies, directing them to stop selling flavored cigarettes to U.S. consumers online. The agency requested written responses outlining actions the companies were taking to bring these products into compliance with the law.

Federal Judge Rejects Challenge to Tobacco Marketing RegulationsA U.S. district court judge recently denied a request by several tobacco companies to block temporarily the marketing restrictions on modified-risk tobacco products in the new federal legislation regulating tobacco. R.J. Reynolds Tobacco Co. and other tobacco companies challenged the Family Smoking Prevention and Tobacco Control Act, claiming that the new tobacco regulations violate “their First Amendment right to communicate with adult tobacco consumers about their products.” The judge rejected their request to put the restrictions on hold, stating in a 29-page decision that the government “has a substantial interest in protecting consumers from misleading tobacco industry claims about allegedly reduced risk tobacco products.” Opposing motions for summary judgment are now before the court.

» Read the federal court decision. PDF, 195 Kb

Q “We’re considering implementing a tobacco-free policy on our college campus, including both outdoor and indoor areas, but we’re concerned about compliance. What are some enforcement options and resources?”

A Tobacco-free college campuses are a growing trend throughout the U.S. Policies prohibiting the use of cigarettes and other tobacco products, such as smokeless tobacco, promote and protect public health by reducing tobacco use, while also offering social, economic and environmental benefits. Many administrators, for example, adopt tobacco-free policies to lower health insurance costs, reduce potential fire risk, and decrease grounds maintenance expenses.

As of October 2009, the American Lung Association has identified 176 colleges and universities in thirty-five states (PDF, 83 Kb) that prohibit smoking and all forms of tobacco use on campus, indoors and outdoors. Also, Americans for Nonsmokers’ Rights has additional resources and links to information about smoke-free campuses, along with a list of 365 college and university campuses (PDF, 67 Kb) that are 100 percent smoke-free.

The American College Health Association recently released guidelines encouraging colleges and universities to adopt policies that prohibit the use of products containing or derived from tobacco, including cigarettes, cigars, hookah-smoked products and oral tobacco, such as snuff and chewing tobacco. The Association’s recommendations for a 100% indoor and outdoor campus-wide tobacco-free environment include implementation guidelines, such as promoting policies throughout the campus, using signage, providing cessation support to the campus community and prohibiting tobacco marketing, sampling and sponsorship on campus.

Most tobacco-free campus policies are self-enforcing, leaving it to faculty, staff, students and visitors to comply voluntarily. Still, educational institutions, as all employers, have leverage over their employees and students and can implement policies governing behavior in the work and educational environment. For example, they can impose penalties for infractions of tobacco-free policies that could affect employment or student standing at the institutions. Such penalties can range from monetary fines, which can increase with successive violations, to progressively severe disciplinary measures.

Some states have what are commonly called “smoker protection laws,” which prohibit employers from making employment decisions based on an employee’s off-site use of lawful products, such as tobacco, on the employee’s own time. This law, however, does not limit the ability of academic administrators to regulate tobacco use on school property (such as school vehicles) or during work hours.

One thorny area in any tobacco-free campus policy is the regulation of smoking by campus visitors. Many campus policies rely on social/peer pressure, requests, and reminders to visitors, while other policies require noncompliant visitors to be escorted or evicted from campus.

Cont.

Kerry Cork, J.D., is Associate Counsel at the Tobacco Control Legal Consortium.

If you have a question about a tobacco law-related issue that you’d like us to address in this column, or a topic you’d like us to cover in future publications, please send us an e-mail at tobaccolaw@wmitchell.edu. Thank you!

4 Ask A Lawyer

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Today we profile Eric Lindblom, Director for Policy Research and General Counsel at the Campaign for Tobacco-Free Kids and Tobacco-Free Kids Action Fund. A graduate of Yale (B.A. cum laude) and Harvard Law School (J.D. cum laude), Eric has worked since 1998 at the Campaign, providing information, advice and other assistance to tobacco control advocates nationwide to help them in their efforts to develop and pass strong tobacco control laws, and to stop or improve weak laws.

A nationally respected tobacco law and policy expert, Eric provides research and policy analysis with advocacy guidance to in-house

staff and a broad network of federal, state, local (and sometimes international) advocates and officials. He evaluates public policy proposals and drafts or revises actual and model federal and state tobacco control legislation. He also helps advocates understand federal preemption and First Amendment constraints, legal constraints on nonprofits’ efforts to support or oppose candidates, and the limits on nonprofit lobbying (and how to work most effectively within those constraints and limits).

Eric’s areas of expertise include legal, economic and budget issues, international trade, tobacco taxes (including tobacco tax evasion and

smuggling), Indian tribal matters, and Internet tobacco product sales. He has written hundreds of white papers, reports, articles and state-specific factsheets on tobacco use on a wide range of tobacco policy-related topics. For example, he has developed materials that project the new revenues, public health benefits, and cost savings from proposed state (or local) cigarette tax increases, and that describe optimal ways to structure state taxes for other tobacco products to promote tax equity, maximize revenues and, most importantly, promote public health. These valuable resources are available on the Campaign for Tobacco-free Kids website at www.tobaccofreekids.org.

Profiles in Public Health Law

Profiles in Public Health LawEric Lindblom: Tobacco Law & Policy Expert

This Legal Update feature showcases individuals with distinguished careers and records of accomplishments in public health law.

Ask A Lawyer cont.

Another enforcement challenge concerns smokeless tobacco products, such as snus, which can be inconspicuously used and carried in one’s purse or pocket. Once a college or university has established a tobacco-free policy and the consequences of violations, and shared this information with the campus community, the policy can only be effective if it is actively supported and enforced by students, staff, and faculty, as well as the college administration.

For more information:

• American College Health Association Position Statement and Guidelines on Tobacco on College and University Campuses (PDF, 120 Kb), Sept. 2009, encouraging U.S. colleges and universities to adopt campus-wide tobacco free policies, indoors and outdoors. The guidelines include prohibitions on tobacco sampling, marketing and sponsorship, as well as recommendations on cessation support to the campus community.

• Tobacco Technical Assistance Consortium website with case studies and resources related to smoke-free campuses

• Americans for Nonsmokers’ Rights website, with compiled lists of smoke-free campuses and resources PDF, 67 Kb

• BACCHUS Network™ website, with certification for tobacco-free campus policy

6 The Global Perspective

The Tobacco AtlasThe World Lung Foundation and the American Cancer Society’s third edition of The Tobacco Atlas is now available. The Atlas provides current world data on topics such as tobacco use, secondhand smoking, smoke-free areas, and tobacco litigation. It also has predictions on the future tobacco epidemic. The report is also available as an interactive online map with charts and facts.

» Read The Tobacco Atlas. PDF, 1.62 Mb

Institute of Medicine Report: Secondhand Smoke Exposure and Cardiovascular EffectsThe Institute of Medicine recently released a comprehensive review of the science on the relationship between secondhand smoke exposure and acute coronary events. Major conclusions of the report:

Secondhand smoke can cause a heart attack. Even brief exposure to secondhand smoke could trigger a heart attack. Smoke-free air laws result in fewer heart attacks.

» Read more about Secondhand Smoke Exposure and Cardiovascular Effects: Making Sense of the Evidence. (Available for purchase)

CDC’s Latest Data on U.S. Cigarette Smoking and Cessation TrendsThe Morbidity and Mortality Weekly Report (Nov. 13) includes two tobacco-related articles. The first article, “Cigarette Smoking Among Adults and Trends in Smoking Cessation – United States, 2008,” points out that in 2008, an estimated 20.6 percent (46 million) of U.S. adults were cigarette smokers. The smoking rate of adults in the United States has slightly increased from 2007 (19.8 percent) to 2008 (20.6 percent) – the first increase in the adult smoking rate since 1994.

According to the second article, “State-Specific Secondhand Smoke Exposure and Current Cigarette Smoking Among Adults – United States, 2008,” more than half of U.S. residents still live in areas where they are not protected by comprehensive smoke-free laws. In 2008, current smoking prevalence was highest in West Virginia (26.6 percent), Indiana (26.1 percent) and Kentucky (25.3 percent).

» Read the online version of the MMWR Report on the CDC website.

Rebutting the Tobacco Industry: Winning Smokefree Air The Global Smokefree Partnership’s latest report details the tobacco industry’s tactics of interfering in smoke-free legislation and describes how to counter the industry by implementing policies contained in the World Health Organization’s Framework Convention on Tobacco Control. The report also contains a status update on global smoke-free progress in 2008 and 2009.

» Read the Global Voices Status Report 2009, Rebutting the Tobacco Industry. PDF, 4.23 Mb

•••

WHO Kicks Off Tobacco Control Campaign in Africa

The World Health Organization has launched a campaign to stop the rapid rise of smoking in Africa – a pandemic-sized problem expected to account for 46 percent of all deaths in Africa by 2030, up from 25 percent in 2004. The Geneva-based agency will set up a regional center in 2010 for health experts to work with African governments to introduce anti-smoking policies. The work will be financed in part by a $10 million grant from the Bill & Melinda Gates Foundation.

» Read about the World Health Organization’s involvement in global tobacco control.

Resource Roundup

Tobacco Control Legal Consortium

William Mitchell College of Law875 Summit AvenueSt Paul, Minnesota 55105tobaccolaw@wmitchell.edutel: 651.290.7506fax: 651.290.7515

Law. Health. Justice.

www.tclconline.org

Affiliated Legal Centers

California Public Health Law & Policy Technical Assistance Legal Center

Colorado Tobacco Advocacy Resource Partnership

Maryland Legal Resource Center for Tobacco Regulation, Litigation & Advocacy

Massachusetts Public Health Advocacy Institute

Michigan Smoke-Free Environments Law Project

Minnesota Tobacco Law Center

New Jersey Tobacco Control Policy and Legal Resource Center/New Jersey GASP

Disclaimer: While we make every effort to ensure the information in this newsletter is accurate and complete, the Tobacco Control Legal Consortium is unable to guarantee this information. Material is provided for informational purposes and is not intended as legal advice. We encourage readers with questions to consult an attorney familiar with the laws of their jurisdictions.

Copyright © 2009 Tobacco Control Legal Consortium

7

Opening of New York State’s Tobacco Policy Center

On January 1, 2010, New England Law / Boston will open its Center of Excellence in Tobacco Policy, a policy resource center for New York State’s tobacco control efforts. The Center will be directed by New England Law Professor Micah Berman, director of Ohio’s Tobacco Public Policy Center from 2005 to 2008. New England Law / Boston received a five-year, approximately $2.5 million grant from the New York State Department of Health to develop and operate a tobacco policy resource center that will build on New York’s leadership in this field.

Kick Butts Day 2010March 24, 2010

“Kick Butts Day” is an annual day of national activism when thousands of youth take action against tobacco use at more than 2,000 events across the U.S.

» Learn more about planned events and activity ideas, and registration materials for this 14th annual Kick Butts Day.

Promising Practices: Achieving Health and Social Equity in Tobacco ControlApril 27-28, 2010

The Health Education Council’s Break Free Alliance and the National African American Tobacco Education Network will hold its national conference in New Orleans, Louisiana, at the Hotel Monteleone. The purpose of the conference is to bring together those seeking to reduce the burden of tobacco use in low socioeconomic status and ethnic minority populations.

» Visit the event website for program and registration information.

Upcoming Events