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Third Circuit Rules for State Farm in Juvenile Smoking Policy Lawsuit 

A class action over clauses in insurance contracts concerning youth smoking appears to be extinguished. In an unpublished decision, the U.S. Court of Appeals for the Third Circuit has upheld the dismissal of claims against State Farm Insurance Company brought by a plaintiff who sued because the company didn't differentiate between smokers and non-smokers when calculating policy premiums for her children.

In 2002, Samuel Doctor, now deceased, bought life insurance policies for his sons (Samuel, who was 16, and Nathan, who was 10) for face amounts of $15,000 each. The standardized application forms, which State Farm uses for both adult and juvenile applicants, asked Doctor whether each child smoked or used tobacco products. He designated both children to be nonsmokers/non-tobacco users. According to court documents, State Farm has offered tobacco-distinct premiums for adults, but has never offered tobacco-distinct premiums for insureds age 20 and under. Rather, it offers an aggregate juvenile premium rate that takes into account the mortality experience of all juveniles (both those who use tobacco and those who do not). . . .

Other, similar youth smoking suits have bounced around in other jurisdictions without much success. The Pennsylvania suit was seen as the most promising for plaintiffs lawyers.

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Neb. attorneys want smoking ban case dismissed  

State attorneys have asked a Lancaster County district court to reject an Omaha pool hall's request to declare Nebraska's new smoking ban unconstitutional.

Big John's Billiards is fighting the law that took effect June 1, saying the law's exemptions are arbitrary. . . .

In arguments submitted Monday, the state says the court doesn't have jurisdiction over the state or the issue.

A hearing on the matter is set for Aug 6.

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Omaha pool hall attorney unfazed by ruling in smoking ban case  

Ted Boecker (BECK-ur) said this week's ruling isn't a final determination and Big John's Billiards will continue to try and prove the law is unconstitutional. A judge has yet to rule on his request to throw out the law altogether.

Boecker had filed the request before the law took effect June 1. He says the law has hurt business and its exemptions, including for cigar bars, are arbitrary.

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FULMER: FDA will not protect tobacco companies from tort liability  

A practically unnoticed provision of the law provides, "No provision of this chapter [i.e., the 'Family Smoking Prevention and Tobacco Control Act'] relating to a tobacco product shall be construed to modify or otherwise affect any action or the liability of any person under the product liability law of any State." More succinctly, the regulatory system that the FDA will establish will not protect tobacco companies from tort liability.

This provision builds off of the recent Supreme Court ruling in Wyeth v. Levine, where the Court held, 6-3, that even if a drug has been approved by the FDA, patients may still sue the drug manufacturer in state court. . . .

As the intent of the newly passed legislation was to weaken the tobacco industry, it is unlikely that an argument that the law gave new protection to big tobacco would succeed. With this in mind the recent successes of the Engle plaintiffs should only continue.

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Iowa smoking ban’s effect on business at bars inconclusive 

Statistics from the Iowa Alcoholic Beverages Division show an unsettled picture of the bar business since the smoking ban started.

Gross spirits sales in Scott County through liquor stores and distributors is up by $2.26 million - or 16.8 percent - for the year ending May 31, compared with the same time period ending May 31, 2008, according to the Iowa ABD.

However, the number of liquor licenses issued to establishments in Scott County dropped from 327 in 2008 to 298 this year, continuing a slide from 2006 when 386 on-premise licenses were issued in the county.

"It has hurt all of us," said Joe Sturgis, the owner of the Rusty Nail in Davenport who lobbied strongly against the smoking ban. "We've lost about 10 businesses because of it.

"We probably lost 40 percent of our customers to bars that were openly letting their customers smoke. It has come back, but we're still down about 30 percent." . . .

Iowa bar owners are rankled by how state-licensed casinos are exempt from the smoking ban and want a fair playing field. Locally, however, the Iowa-based casinos' revenue slumped at the end of last year, with gaming officials laying the blame on the recession.

"I would like to have (Gov. Chet) Culver or a judge look me in the eye and tell me the health of my workers is more important than the health of the workers on the boats," Frick's owner Moorman said.

Brian Froehlich, owner of Fro's Pub and Grub in Wilton, has filed a lawsuit in Muscatine County against the Iowa Department of Commerce, asking for judicial review of a 30-day license suspension. The lawsuit is expected to decide whether the smoking ban violates the Constitution's equal protection clause by permitting smoking in some businesses while banning it in others.

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• Opposition To Iowa Smoking Ban Burning Out  

Her acceptance of the ban but uneasiness about government intrusion appears to be a common thread among some residents in a state that last year banned smoking in most workplaces, restaurants and bars.

A coalition of bar owners challenged the ban in court but later dropped their lawsuit. Others have called for lawmakers to revise the law, but Democratic leaders who hold majorities in the Legislature have been adamant that no changes will be made in the near future.

Iowa is among 22 states that prohibit smoking in bars and restaurants, though its law exempts casinos, fairgrounds and veterans organizations. Bans will take effect in four other states this year, and three states ban smoking in restaurants, but not bars.

Despite vocal complaints from some bar owners, compliance with the law has been high, said Lynn Walding, the administrator for the Iowa Alcoholic Beverages Division.

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Today in History  

Today is Tuesday, July 7, the 188th day of 2009. . . .

Ten years ago: In the first class-action lawsuit by smokers to go to trial, a jury in Miami held cigarette makers liable for making a defective product that caused emphysema, lung cancer and other illnesses. (The jury later ordered the tobacco industry to pay $145 billion in punitive damages, but the Florida Supreme Court in 2006 voided the award, saying each smoker's case had to be decided individually.)

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• Bangalore teens welcome court ban on tobacco  

As more and more teenagers of India's IT hub Bangalore are falling prey to smoking, the Karnataka High Court order barring tobacco products' sale near schools and colleges has been welcomed by the youngsters themselves. This should help them stay away from the harmful addiction, they say.

The Karnataka High Court on Monday directed the government to effectively implement the Cigarette and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 (COTPA), to prevent the sale of tobacco products near educational institutions.

The high court has asked the Bangalore Municipal Corporation and the pre-university board to file an action-taken report in six weeks time on the implementation of the COTPA.

According to the COTPA, cigarettes and other tobacco products are banned to be sold to those below 18 years and such sales are prohibited within 100 yards from institutes of learning.

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• Big tobacco pays Dutch opposition to smoking ban 

Ton Wurtz, treasurer of the foundation 'Red de kleine horecaondernemer' (Save the small hospitality entrepreneur), has admitted to receiving "about 50,000 euros per year" from the tobacco companies. Wurtz also holds biweekly strategy talks with Willem Jan Roelofs, the chairman of the cigarette industry foundation SSI, he said.

Smoking was banned in cafes, bars, hotels and restaurants in The Netherlands a year ago. Just before the ban went into effect on July 1, 2008, Wurtz, who has been the spokesperson for a foundation that stands up for smokers since 1993, and other seasoned tobacco lobbyists established the foundation to represent the interests of small cafe owners.

The smoking ban was primarily adopted to guarantee the right of employees to work in a smoke-free environment. But critics say small bars, with no employees except the owners, should be exempt from the ban. Several court cases are underway against cafes that defied the ban.

The law firm representing the small cafe owners has been negotiating with the tobacco industry about the possibility of it bankrolling future lawsuits challenging the smoking ban. . . .

"We are talking to several parties about financing a procedure, SSI amongst them," Marco Gerritsen of the Van Diepen Van der Kroef law firm confirmed. "They haven't promised anything yet."

SSI's is a collaboration between British American Tobacco (Pall Mall), Imperial Tobacco (Gauloises) and Japan Tobacco International (Camel); Philip Morris (Marlboro) left the group in 2005. Tobacco companies fear a decline of 5 percent of sales because of the smoking ban in bars. Roelofs: "That is a substantial loss in an already contracting market." He denied the SSI has any intention to finance future court cases.

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Challenge To Smoking Ban  

A year after it was set, bar owners are expected to go before the court Monday to fight the state's smoking ban -- claiming the ban violates their rights. The Iowa Bar Owners Coalition filed the suit last July 1st, the day the ban went into effect.

The suit names the director of the Iowa Department of Public Health, the department itself and the state of Iowa.

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County: Toss smoke suit 

The Teton Health District filed a motion Thursday to dismiss a lawsuit challenging its Smokefree Air Rule.

Flat Creek Development, which owns the Virginian Saloon, and three nonprofit organizations did not make an adequate argument that the district doesn't have the authority to ban smoking in public places, the motion alleges.

"We filed the motion to dismiss because we don't think it rises to the level of actual suit," said Keith Gingery, attorney for Teton County and the health district.

The Teton District Board of Health voted in March to enact a smoking ban, which went into effect May 23, for all public places, including bars, restaurants and places of employment. Tobacco Row was given an exception to the rule.

Flat Creek Development teamed with the Wyoming Contractors Association, Wyoming Trucking Association and the State Liquor Association to file a lawsuit challenging the validity of the ban the day before it went into effect.

The lawsuit has not affected the status of the ban.

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• Big John’s restraining order against smoking ban denied  

Lancaster County District Judge Jodi Nelson on Wednesday denied a pool hall's request for a restraining order against the Nebraska Clean Indoor Air Act, which went into effect June 1.

Attorney Theodore Boecker Jr., who represents Big John Billiards Inc., claimed in a lawsuit filed in May against the state of Nebraska that the law was unconstitutional. . . .

Boecker argued in the lawsuit that the cigar bar exemption favored certain businesses with longtime tobacco ties while harming others like, for instance, the traditionally "smoke-filled pool hall." He said the court should strike down the entire ban and let Big John's operate as it normally did prior to June 1.

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Did Ramadoss misrepresent facts? 

he Supreme Court made headlines recently when it asked for records of the controversial group of ministers (GoM) meeting on February 3 after former health minister A Ramadoss alleged that the minutes of the meeting — that took a call on tobacco warnings on cigarette and beedi packets — had been altered under pressure.

The TOI has now accessed records on the basis of which SC supported the government in its stand that Ramadoss had misrepresented facts when he alleged that the pictorial warnings had been reduced under pressure from the tobacco lobby.

The GoM chaired by the then foreign minister Pranab Mukherjee included urban development minister S Jaipal Reddy, former commerce and industry minister Kamal Nath and former minister of state (MEA and I&B) Anand Sharma besides Ramadoss. The ministers, with the exception of Ramadoss, agreed that the pictorial warnings on cigarette and beedi packets should be restricted to 40% of the principal display area on the front panel of the package only.

There was also unanimity that the warnings should not apply to wholesale packaging even if it meant making amendments in the Cigarette and Other Tobacco Products Packaging and Labelling Rules of 2008. . . .

On May 1, Ramadoss wrote to PM Manmohan Singh protesting that further amendment to the Packaging and Labelling Rules were being contemplated by the GoM to restrict the health warning to the front panel and only on packs meant for consumers. The health minister pointed out that the intended health warning in real terms would actually occupy only 20% space and would not meet the minimum requirement as per internationally accepted norms.

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• Appeals court upholds KC’s smoking ban  

Kansas City can continue to ban smoking from its bars and restaurants under a ruling issued today by the Missouri Court of Appeals.

The court affirmed Kansas City's comprehensive smoking ban. An appeal had been filed by JC's Sports Bar in Clay County.

Jonathan Sternberg, the attorney representing the bar, had argued that Kansas City is not allowed to regulate smoking in bars, billiard parlors and restaurants that seat fewer than 50 people because state law permits smoking in such places. He said Kansas City's strict smoking restrictions are in conflict with state law and violate the Missouri Constitution. . . .

Sternberg said he was discussing the possibility of an appeal to the Missouri Supreme Court with his clients but they have not yet made a decision. He said the Supreme Court takes about 10 percent of the appeal requests it receives.

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ABOUHALKAH: Victory for nonsmokers: Court upholds KC's law 

Check off another victory for KC's tough smoke-free law.

On Tuesday, the Missouri Court of Appeals upheld the law passed by voters in 2008.

The result: Smoking continues to be banned in bars, restaurants and many other public places in Kansas City.

That's wonderful news for tens off thousands of Kansas Citians who don't want to be exposed in public places to harmful cigarette and pipe smoke.

The victory was yet another defeat for Jonathan Sternberg, the attorney representing a bar that is challenging the city's law. He has long claimed that state law doesn't allow the city to prohibit smoking in certain public places.

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