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Regulating Tobacco: The Need for a Public Health Judicial Decision-Making Canon

Published online by Cambridge University Press:  01 January 2021

Richard A. Daynard
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Extract

Cigarette smoke is by far the leading preventable cause of death and disease in the United States. It has been estimated to kill between 419,000 and 589,000 smokers and up to 65,000 non-smokers each year. This premier status is hardly a new development, having been true for most of the last century, and known to be true at least since the first Surgeon General’s Report in 1964.

Why then are tobacco products exempt from any significant federal oversight or control? Why do cigarette advertisements, pitched to young smokers and non-smokers, continue to be plastered on every available surface inside and outside many convenience stores and to adorn the pages of popular magazines? Why, decades since the makers of far less dangerous products began to be held accountable in tort law, was the first payment by a cigarette company on a products liability judgment not made until 2001?

Type
Article
Information
Journal of Law, Medicine & Ethics , Volume 30 , Issue 2 , Summer 2002 , pp. 281 - 289
Copyright
Copyright © American Society of Law, Medicine and Ethics 2002

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References

Office on Smoking and Health, U.S. Department of Health and Human Services, Reducing the Health Consequences of Smoking: 25 Years of Progress. A Report of the Surgeon General, DHHS Pub. No. (CDC) 89–8411 (1989): At 160, available at <http://www.cdc.gov/tobacco/sur_1989.htm>..>Google Scholar
National Cancer Institute, U.S. Department of Health and Human Services, Changes in Cigarette-Related Disease Risks and Their Implication for Prevention and Control, NIH Pub. No. 97-4213 (Washington, D.C.: National Institutes of Health, 1997): at 8.Google Scholar
Satcher, David, “Preface,” in National Cancer Institute, U.S. Department of Health and Human Services, Health Effects of Exposure to Environmental Tobacco Smoke: The Report of the California Environmental Protection Agency (Bethesda, Maryland: National Cancer Institute, 1999): At 1, available at <http://rex.nci.nih.gov/NCI_MONOGRAPHS/MONO10/MONO10.HTM>.Google Scholar
See Daynard, R.A., “The Use of Social Policy in Judicial Decision-Making,” Cornell Law Review, 56 (1971): 919–50.Google Scholar
U.S. Food and Drug Admin, v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000).Google Scholar
Lorillard Tobacco Co. v. Reilly, 533 U.S. 525 (2001).Google Scholar
Cipollone v. Liggett Group, Inc., 505 U.S. 504 (1992).Google Scholar
Glantz, L. Annas, G., “Tobacco, The Food and Drugs Administration, and Congress,” N. Engl. J. Med., 343 (2000): 1802–06.CrossRefGoogle Scholar
See the constitutional analysis under the subheading, “Invalidating Restrictions on Tobacco Advertising,” below.Google Scholar
Id.Google Scholar
See the statutory analysis under the subheadings, “Invalidating Restrictions on Tobacco Advertising,” and “Impeding Civil Litigation Against Cigarette Manufacturers,” below.Google Scholar
See the circuit court decisions that preceded the Supreme Court's Cipollone decision, discussed under the subheading, “Impeding Civil Litigation Against Cigarette Manufacturers,” below.Google Scholar
Id.Google Scholar
Brown & Williamson, 529 U.S. 120.Google Scholar
State health departments may have this authority, but they have yet to exercise it.Google Scholar
Recent statutes in several states require manufacturers to provide some of this information to state agencies. See, e.g., Massachusetts Tobacco Ingredients and Nicotine Disclosure Act, Mass. Gen. Laws ch. 94, $ 307B (2000); Tex. Health & Safety Code Ann. §§ 161. 351–355 (1999). A constitutional challenge to the Massachusetts statute was rejected by the First Circuit. Philip Morris, Inc. v. Reilly, No. 00–2425, 2001 WL 1215365 (1st Cir. October 16, 2001).Google Scholar
15 U.S.C. §§ 1331 et seq. (2002).Google Scholar
15 U.S.C. §§ 4401 et seq. (2002).Google Scholar
Pub. L. No. 102-321, Title II, $ 202, 106 Stat. 394, codified at 42 U.S.C. $ 300x–26 (2002).Google Scholar
59 Fed. Reg. 15,968–16,039 (1994).Google Scholar
It is rumored that tobacco-state congressional delegations threatened to block the Pure Food and Drug Act of 1906 unless nicotine was first removed from the United States Pharmacopoeia. It was.Google Scholar
15 U.S.C. $ 2052(a)(1)(B) (2002); 15 U.S.C. $ 1261(f)(2) (2002).Google Scholar
Brown & Williamson, 529 U.S. 120.Google Scholar
21 U.S.C. §§ 321(g)(1)(C), 321(h).Google Scholar
60 Fed. Reg. 41,314–41,787 (1995).CrossRefGoogle Scholar
Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).Google Scholar
But, as Justice Breyer pointed out in his dissent, Congress also did nothing to exclude FDA jurisdiction over tobacco products even after it learned that the FDA had changed its position.Google Scholar
Coyne Beahm, Inc. v. U.S. Food and Drug Admin., 966 F. Supp. 1374 (M.D.N.C. 1997), rev'd, Brown & Williamson Tobacco Corp. v. U.S. Food and Drug Admin., 153 F.3d 155 (4th Cir. 1998).Google Scholar
Glantz, Annas, , supra note 8.Google Scholar
15 U.S.C. $ 1334 (2002).Google Scholar
Lorillard, 533 U.S. 525.Google Scholar
Id. at 594.Google Scholar
Id. at 570–71.Google Scholar
Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 (1976).Google Scholar
Lorillard, 533 U.S. at 564.Google Scholar
Central Hudson Gas & Elec. Co. v. Public Serv. Comm'n of N.Y., 447 U.S. 557 (1980).Google Scholar
Mass. Regs. Code tit. 940, §§ 22.06(5)(a)-(b) (2000).Google Scholar
Lorillard, 533 U.S. at 562.Google Scholar
Id. at 563.Google Scholar
Id. at 554. quoting Central Hudson, 447 U.S. at 562.Google Scholar
Through the Cigarette Labeling and Advertising Act, 15 U.S.C. §§ 1331 et seq.Google Scholar
Brown & Williamson, 529 U.S. at 161; Lorillard, 533 U.S. at 570–71.Google Scholar
E.g., Massachusetts Tobacco Ingredients and Nicotine Yield Act (1996), Mass. Gen. Laws ch. 94, $ 307B (2000); N.Y. Exec. Law $ 156-c (McKinney 2000) (cigarette fire safety requirements).Google Scholar
Meckler, L., “More Teens Choose Not to Smoke,” Boston Globe, October 6, 2001, at 2.Google Scholar
Cipollone v. Liggett Group, Inc., 789 F.2d 181 (1986).Google Scholar
15 U.S.C. $ 1331 (2002).Google Scholar
Cipollone, 789 F.2d at 187.Google Scholar
Pennington v. Vistron Corp., 876 F.2d414 (5th Cir. 1989); Roysdon v. R.J. Reynolds Tobacco Co., 849 F.2d 230 (6th Cir. 1988); Stephen v. American Brands, Inc., 825 F.2d 312 (11th Cir. 1987); Palmer v. Liggett Group, Inc., 825 F.2d 620 (1st Cir. 1987).Google Scholar
Cipollone v. Liggett Group, Inc., 593 F. Supp. 1146, 1160–63 (D.N.J. 1984).Google Scholar
See, e.g., Memorandum of Law Amicus Curiae of the American Public Health Association and the Tobacco Products Liability Project in Opposition to Defendant's Motion to Dismiss, Palmer v. Liggett Group Inc., No. 83–2445–MA (D. Mass. 1986), printed in 1.5 Tobacco Products Litigation Reporter $ 3.86 (1986).Google Scholar
Cipollone, 505 U.S. 504.Google Scholar
15 U.S.C. $ 1334(b) (2002).Google Scholar
Cipollone, 505 U.S. at 521.Google Scholar
E.g., Griesenbeck v. American Tobacco Co., 897 F. Supp. 815 (D.N.J. 1995).Google Scholar
Reprinted in 6.1B Tobacco Products Litigation Reporter §§ 3.121, 3.105, 3.179.Google Scholar
Holmes, O.W., The Common Law (Cambridge, Massachusetts: Belknap Press, 1967): at 1.Google Scholar
Seavey v. Preble, 64 Me. 120, 121 (1874). quoted in Parmet, W.E., “Legal Rights and Communicable Disease: AIDS, the Police Power, and Individual Liberty,” Journal of Health Politics, Policy and Law, 14 (1989): 741–71, at 746.CrossRefGoogle Scholar