Tobacco.org

MULFORD v. ALTRIA GROUP, INC.  

Plaintiffs are smokers and have brought a class action suit against Defendants who they allege manufactured "lowered tar" or "Lights" filtered cigarettes. (Memorandum Opinion and Order at 2, Docket No. 83, filed March 16, 2007). Plaintiffs allege that Defendants violated the New Mexico Unfair Trade Practices Act ("UPA") by falsely representing that their product is "light" and/or delivers "lowered tar and nicotine" in comparison to regular cigarettes, fraudulently concealing the true nature of their "Lights" cigarettes. (Id. At 24-25). . . .

Philip Morris asked the Court to reconsider its Order because (1) the Fifth Circuit's decision in Brown is contrary to this Court's Order, and (2) the various FTC statements and FTC's enforcement conduct shows that the FTC's express policy is to permit the "lights" and "lowered tar and nicotine" descriptors on packages. The United States Supreme Court's decision in Good abrogated Brown and held that neither FTC's various decisions with respect to statements of tar and nicotine nor the FTC's inaction regarding "light" descriptors justifies preemption of state deceptive practices rules. The Court will deny Philip Morris' Motion for Reconsideration.

Jump to full article »

• CLEARY v. PHILIP MORRIS, INC.  

Brian Cleary and Rita Burke, representing a putative class, have sued several tobacco companies and tobacco-related entities. This case was filed in state court in 1998. Defendant Lorillard Tobacco Co. removed it to this Court after plaintiffs filed a third amended complaint on March 3, 2009. In their third amended complaint, plaintiffs make several claims against the defendants on behalf of Illinois residents. Among other claims, plaintiffs allege that defendants deceptively marketed "low tar," "light," and "ultra light" cigarettes as being safer than regular cigarettes, although they were equally dangerous. Defendants have moved for judgment on the pleadings with respect to these claims on the ground that they are time-barred. For the following reasons, the Court grants the motion as to the defendants other than Philip Morris but defers ruling as to Philip Morris. . . .

For the foregoing reasons, the Court grants defendants' motion for judgment on the pleadings concerning Count 3 of the third amended complaint [docket no. 85] as to all defendants other than Philip Morris. The Court directs Philip Morris to show cause, by no later than September 21, 2009, why the Court should not vacate the state court's interlocutory order dismissing the light cigarettes claim. Pending ruling on that matter, the Court defers consideration of whether the Marlboro Lights claims in the third amended complaint relate back to the date the plaintiffs filed the first amended complaint. The case is set for a status hearing on September 23, 2009 at 9:30 a.m.

Jump to full article »

Fed Appeals Court Revives Suit Against Philip Morris, Altria 

The Ninth Circuit Court of Appeals reinstated a wrongful death suit against Philip Morris and Altria.

Delores Hunter brought the suit on behalf of her common law husband, Benjamin Francis, who died from lung cancer in 2004 at age 52. . . .

HUNTER v. PHILIP MORRIS USA

DOLORES HUNTER; ESTATE OF BENJAMIN G. FRANCIS, Plaintiffs-Appellants,

v.

PHILIP MORRIS USA; ALTRIA GROUP, INC.; THE ALASKA COMMERCIAL COMPANY, Defendants-Appellees.

No. 07-35916. . . .

[14] For the foregoing reasons, the judgment of the district court is vacated and the case is remanded with instructions that the case be remanded to state court.

VACATED and REMANDED with instructions.

Jump to full article »

OHIO ex rel. MARTIN v. COLLINS 

D E C I S I O N

Rendered on September 24, 2009 . . .

Relator, Robert Martin ("relator"), an inmate incarcerated at the London Correctional Institution, commenced this original action requesting this court to issue a writ of mandamus ordering respondent, Terry Collins, Director of the Ohio Department of Rehabilitation and Correction ("respondent"), to permit relator and fellow inmates incarcerated prior to March 1, 2009, the right to smoke and use tobacco products while incarcerated. . . .

Pursuant to Civ.R. 53 and Section (M), Loc.R. 12 of the Tenth Appellate District, this matter was referred to a magistrate who considered the action on its merits and issued a decision, including findings of fact and conclusions of law, which is appended hereto. The magistrate recommended dismissal of relator's complaint. First, the magistrate concluded that R.C. 3794.01 through 3794.04 do not grant relator a clear legal right to smoke and determined that respondent is entitled to judgment as a matter of law. . . .

M A G I S T R A T E ' S D E C I S I O N

Rendered on May 21, 2009 . . .

As respondent states in its motion, there is no clear legal right to smoke and relator has misconstrued the Smoke Free Workplace Act in an attempt to assert such a right. Further, relator's reliance on Ohio Adm.Code 5120-9-33, which deals with the right to possess certain items of personal property, is also misconstrued and has no relevance whatsoever to the use of tobacco products. After viewing the complaint and the allegations and reasonable inferences therefrom in the light most favorable to relator, the nonmoving party, it is this magistrate's conclusion that respondent is entitled to judgment as a matter of law.

Jump to full article »

• HUNTER v. PHILIP MORRIS, et. al. (PDF) 

The question of the preemption of state law by federal tobacco legislation has been addressed numerous times. Today, we address the preemption issue in the context of the doctrine of fraudulent joinder, which is invoked to achieve diversity jurisdiction. We hold that the district court erroneously allowed the defendants-appellees to achieve diversity jurisdiction by its incorrect finding that the plaintiffs-appellants’ state law claims were preempted and constituted fraudulent joinder. Because the district court should have remanded the action to state court, we vacate the judgment and remand with instructions to remand the action to state court. . . .

In sum, the Altria defendants have failed to overcome the presumption against removal because Hunter’s complaint does not indicate that she has obviously failed to state a claim against ACC. Accordingly, the district court erred in concluding that ACC was fraudulently joined. The Altria defendants further have failed to establish a clear conflict between Hunter’s claim and federal law. Implied preemption therefore does not apply. Because ACC was not fraudulently joined, there was no complete diversity of citizenship, and the case should have been remanded to the state court. Appellants shall recover their costs on appeal from Appellees. 

Jump to full article »

Court of Appeals Docket #: 06-5267 ($$) 

09/22/2009 PER CURIAM ORDER, En Banc, filed [1207501] denying petitions for rehearing en banc [1199505-3] [1199502-3] [1199499-3][1199496-3][1199466-3] Judge Sentelle, Ginsburg,* Henderson,* Rogers, Tatel, Garland,* Brown, Griffith and Kavanaugh* [06-5267, 06-5268, 06-5269, 06-5270, 06-5271, 06-5272, 06-5332, 06-5367, 07-5102, 07-5103] (Circuit Judges Ginsburg, Henderson, Garland and Kavanaugh did not participate in this matter)

09/22/2009 PER CURIAM ORDER filed [1207502] denying petitions for rehearing [1199505-2][1199502-2][1199499-2][1199496-2][1199466-2] Judge Sentelle, Tatel and Brown [06-5267, 06-5268, 06-5269, 06-5270, 06-5271, 06-5272, 06-5332, 06-5367, 07-5102, 07-5103]

09/28/2009 MOTION filed [1208442] by British American Tobacco (Investments) Ltd. and Altria Group, Inc., Lorillard Tobacco Company, Philip Morris USA Inc. and R.J. Reynolds Tobacco Company in 06-5267, Philip Morris USA Inc. and Altria Group, Inc., British American Tobacco (Investments) Ltd., Lorillard Tobacco Company and R.J. Reynolds Tobacco Company in 06-5268, Altria Group, Inc. and British American Tobacco (Investments) Ltd., Lorillard Tobacco Company, Philip Morris USA Inc. and R.J. Reynolds Tobacco Company in 06-5269, R.J. Reynolds Tobacco Company and Altria Group, Inc., British American Tobacco (Investments) Ltd., Lorillard Tobacco Company and Philip Morris USA Inc. in 06-5270, Altria Group, Inc., British American Tobacco (Investments) Ltd., Lorillard Tobacco Company, Philip Morris USA Inc. and R.J. Reynolds Tobacco Company in 06-5271, Lorillard Tobacco Company and Altria Group, Inc., British American Tobacco (Investments) Ltd., Philip Morris USA Inc. and R.J. Reynolds Tobacco Company in 06-5272, 06-5332, 06-5367, 07-5102, 07-5103 to stay mandate (Response to Motion served by mail due on 10/13/2009)

Jump to full article »

• PHILIP MORRIS, et. al. v. USA: Appeal From The Judgment Of The United States District Court For The District Of Columbia (PDF) ($$) 

Pursuant to FED. R. APP. P. 41(d)(2) and D.C. Circuit Rule 41(a)(2), Defendants respectfully move this Court to stay issuance of its mandate pending the filling and disposition of timely petitions for writs of certiorari. This Court recognized the substantial nature of the arguments raised by Defendants—and the risk of irreparable harm confronting Defendants—when it issued a stay pending appeal. For similar reasons, a stay is also warranted pending the filing and disposition of Defendants’ petitions for certiorari.

A stay is appropriate because the Panel’s opinion raises substantial questions for certiorari, including: (1) whether a court of appeals is required to undertake de novo review of factual findings in a case that squarely implicates a defendant’s First Amendment rights; (2) whether corporations can be part of an “association in fact” RICO enterprise; and (3) whether jurisdiction over this case was extinguished by the enactment of new federal legislation that imposes comprehensive regulation on every aspect of Defendants’ business. The balance of equities also weighs strongly in favor of a stay because, in the absence of a stay, Defendants would be required to incur substantial, unrecoverable expenses to comply with the district court’s injunctions during the pendency of their petitions for certiorari. No other party would be prejudiced by the issuance of a stay because Defendants’ business will continue to be subject to stringent government oversight by the States and the federal Government while their petitions for certiorari are pending.

Jump to full article »

PHILIP MORRIS, et. al. v. USA: Order denying petition for panel rehearing (PDF) ($$) 

Upon consideration of the petitions of Philip Morris USA Inc., R.J. Reynolds Tobacco Co., Lorillard Tobacco Co., Altria Group Inc., and British American Tobacco (Investments) Ltd. for panel rehearing, it is ORDERED that the petitions be denied.

Jump to full article »

• PHILIP MORRIS, et. al. v. USA: Order denying rehearing en banc (PDF) ($$) 

BEFORE: Sentelle, Chief Judge, and Ginsburg,* Henderson,* Rogers, Tatel, Garland,* Brown, Griffith, and Kavanaugh,* Circuit Judges

O R D E R

Upon consideration of the petitions of Philip Morris USA Inc., R.J. Reynolds Tobacco Co., Lorillard Tobacco Co., Altria Group Inc., and British American Tobacco (Investments) Ltd. for rehearing en banc, and the absence of a request by any member

Jump to full article »

PHILIP MORRIS, et. al. v. USA: Order denying motion for partial vacatur (PDF) ($$) 

O R D E R

Upon consideration of appellants Philip Morris USA Inc., R.J. Reynolds Tobacco Co., and Lorillard Tobacco Co.’s suggestion of mootness and motion for partial vacatur, the opposition thereto, and the reply; and the letters of the United States and Philip Morris USA filed pursuant to Fed. R. App. P. 28(j), it is

ORDERED that the motion be denied.

Jump to full article »

"Tobacco and Health" Expert Witness Report Filed on behalf of Plaintiffs in: "The United States of America, Plaintiff, v. Philip Morris, Inc., et al., Defendants," 

I am a Distinguished Professor of History at Pennsylvania State University in University Park, Pennsylvania, where I am also Co-director of the Science, Medicine, and Technology in Culture initiative. I have been asked to review the history of tobacco health hazards, focusing also on the history of the tobacco industry's response to evidence of a tobacco hazard. I have also been asked to respond to the February 2002 reports submitted by Kenneth Ludmerer, Theodore A. Wilson, Richard D. Thomas and Peter C. English. I will begin with some historical background, followed by a review of the discovery of tobacco hazards and the tobacco industry's response to these discoveries. I will then respond to the four reports prepared by expert witnesses for the defense.

Jump to full article »

SCRUGGS TOBACCO FEES EXHIBITS (PDF) 

Jump to full article »

CITIZENS UNITED v. FEDERAL ELECTION COMMISSION (PDF) 

GENERAL KAGAN: Well, all I was suggesting, Mr. Chief Justice, is that corporations have actually a fiduciary obligation to their shareholders to increase value. That's their single purpose, their goal.

CHIEF JUSTICE ROBERTS: So if a candidate - take a tobacco company, and a candidate is running on the platform that they ought to make tobacco illegal, presumably that company would maximize its shareholders' interests by opposing the election of that individual.

GENERAL KAGAN: But everything is geared through the corporation's self-interest in order to maximize profits, in order to maximize revenue, in order to maximize value. Individuals are more complicated than that. So that when corporations engage the political process, they do it with that set of you know, blinders -- I don't mean it to be pejorative, because that's what we want corporations to do, is to -

Jump to full article »

• COMMONWEALTH BRANDS, et. al. v. FDA (PDF) 

COMMONWEALTH BRANDS, INC.; CONWOOD COMPANY, LLC; DISCOUNT TOBACCO CITY & LOTTERY, INC.; LORILLARD TOBACCO COMPANY; NATIONAL TOBACCO COMPANY, L.P.;and R.J. REYNOLDS TOBACCO COMPANY,

v.

UNITED STATES OF AMERICA; UNITED STATES FOOD AND DRUG ADMINISTRATION; MARGARET HAMBURG, Commissioner of the United States Food and Drug Administration; and KATHLEEN SEBELIUS, Secretary of the United States Department of Health* and Human Services, . . .

WHEREFORE, Plaintiffs pray that this Court:

(A) enter a judgment declaring the Act’s speech restrictions, both individually and collectively, to be an unconstitutional abridgement of Plaintiffs’ free speech rights under the First Amendment to the United States Constitution;

(B) enter a judgment declaring that the Act’s warning label and black-and-white text provisions, individually and collectively, effect an unconstitutional taking in violation of the Fifth Amendment to the United States Constitution;

(C) enter a judgment declaring that the Modified Risk Tobacco Products provision violates Plaintiffs’ due process rights under the Fifth Amendment to the United States Constitution;

(D) enter a judgment declaring that the provision allowing modification by the Secretary of the outdoor advertising ban violates Plaintiffs’ due process rights under the Fifth Amendment to the United States Constitution;

(E) enter a judgment declaring that the Act’s restrictions herein challenged collectively effect an unconstitutional taking in violation of the Fifth Amendment to the United States Constitution;

(F) enter a judgment declaring that the Act’s provisions allowing the enactment of additional or more stringent laws is an unconstitutional infringement of Plaintiffs’ free speech

rights and an unconstitutional delegation of legislative power to entities outside the Legislative Branch;

(G) enter, after hearing, a preliminary injunction, pending final resolution of this action, enjoining Defendants from taking any action to enforce the Act;

(H) enter a permanent injunction enjoining Defendants from enforcing the Act’s restrictions herein challenged; and

(I) grant Plaintiffs such additional or different relief as it deems just and proper, including an award of reasonable attorneys’ fees and the costs of this action. 6. In short, while each of these provisions individually violates the Constitution, collectively, the Act’s provisions cut off nearly every currently-available avenue of tobacco advertising and marketing. In so doing, they run afoul of Plaintiffs’ rights to free speech and due process, and effectuate an unconstitutional taking of private property, in violation of the First and Fifth Amendments by, among other things, chilling Plaintiffs’ right to participate in scientific and political debates surrounding their products, unduly restricting Plaintiffs’ right to engage in commercial speech, and confiscating Plaintiffs’ packaging, advertising, and intellectual property for an anti-tobacco message drafted by the Government. Plaintiffs therefore respectfully request that this Court declare the challenged provisions of the Act in violation of the First and/or Fifth Amendments to the United States Constitution and enjoin the Government from enforcing these unconstitutional provisions.

Jump to full article »

DEFENDANTS’ SUPPLEMENTAL BRIEF IN OPPOSITION TO PLAINTIFF’S AND INTERVENOR’S MOTIONS FOR A PRELIMINARY INJUNCTION (PDF) 

At the preliminary injunction hearing on May 15, 2009, the Court inquired about the effect that the Family Smoking Prevention and Tobacco Control Act (“FSPTCA”), which was signed into law on June 22, 2009, might have on the legal issues before the Court . . .

The parties were unable to fully address the Court’s questions at that time because the bill was still pending. The government now submits this summary of provisions that may be relevant to FDA’s authority over electronic cigarettes, and responds to plaintiff’s and intervenor’s supplemental briefs on the same subject.

Through this legislation, Congress confirmed its intention that some nicotine- and tobacco-containing products were already properly subject to FDA’s existing regulatory authority under the Federal Food, Drug, and Cosmetic Act (“FDCA”) before this recent enactment. The new law also expands FDA’s jurisdiction by granting it the authority to regulate additional nicotine- and tobacco-containing products that previously were not within FDA’s jurisdiction. Accordingly, the question for products such as the electronic cigarettes distributed by plaintiff Smoking Everywhere, Inc. (“SE”) is no longer whether Congress intends for FDA to regulate electronic cigarettes derived from tobacco, but, for each product, under which authorities – as drugs, devices, and combination products, or as tobacco products.

The answer with respect to the products at issue in this action is still the same: FDA’s original conclusion – that the two shipments of E-cigarettes that were referenced in the complaint are combination products regulated under FDA’s drug and device authorities – remains correct. In the administrative proceeding documented in the administrative record provided to this Court, FDA found, after examining the product, the claims made in the product labeling, and information SE submitted to FDA, that SE’s product met the definition of both a drug and device under the FDCA. Nothing in the FSPTCA alters or affects that conclusion.

Jump to full article »