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• Counties Can Pass Smoking Rules 

The Michigan Supreme Court has ruled that counties can put more stringent anti-smoking rules in place than state lawmakers.

Courts have said only the Legislature can ban smoking in restaurants and bars.

But local governments are prohibiting smoking inside other businesses because of secondhand smoke risks.

All seven justices on the high court said Tuesday that local officials can adopt stricter smoking regulations than the state to safeguard public health.

But the court split 4-3 on another issue, voting to uphold a northern Michigan health department's rules letting workers sue if they're fired for asserting the right to a smoke-free environment.

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• BERLIND: Tobacco and the Tort Bar 

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.

This is a bizarre pairing of almost total government involvement in an industry without any government responsibility for, or even modest protection from, the damage claims sure to be generated by that industry for following the law.

The FDA legislation builds on the precedent recently established by the Supreme Court in Wyeth v. Levine. In Wyeth, the Court ruled 6-3 that even if the FDA has approved a drug, the drug maker can still be sued by patients in state court. The majority argued that a litigant is still entitled to claim that the company should have used a stronger warning label than the FDA had required.

But as Justice Samuel Alito observed in his dissenting opinion, "the real issue is whether a state tort jury can countermand the FDA's considered judgment."

The president has proclaimed a "new era of responsibility" for America. But these recent FDA developments -- in which government determines the rules, the business community takes the blame, and trial lawyers take their cut -- seems anything but.

Like elevating the rights of unions over those of secured lenders, the FDA tobacco legislation disturbingly suggests that only those disfavored by the administration will actually be held responsible for anything at all. And it's no secret that the trial bar -- among Mr. Obama's most generous campaign supporters -- has already earned billions from tobacco litigation.

If we truly believe in "responsibility" for businesses, government officials, trial lawyers and ordinary citizens, then regulatory compliance should provide a strong defense against tort claims.

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• KC’s smoking ban gets appeals court hearing  

The fate of Kansas City's voter-approved smoking ban now rests with the Missouri Court of Appeals.

Lawyers for the city and a group opposing the smoking ban squared off this morning in arguments before the appeals court.

At issue is whether Kansas City's ban on smoking in small bars and billiard parlors complies with state law or exceeds the authority given by the state to regulate smoking.

Jonathan Sternberg argued on behalf of JC's Sports Bar, which was fined for violating the Kansas City comprehensive ban against smoking in bars and restaurants that voters approved in 2008. Sternberg argued that, under state law, Kansas City is not allowed to regulate smoking in bars, billiard parlors and restaurants that seat fewer than 50 people. He said smoking in small bars such as JC's is specifically permitted under the state's Clean Indoor Air Act, and the city cannot prohibit what state law allows.

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• EDITORIAL: Bill would ‘fix’ mistake regarding smoking ban 

House Majority Whip Mike Caputo and Delegates Tim Manchin and Linda Longstreth, all D-Marion, have sponsored a bill that would require all smoking bans not yet in effect and all future bans to be approved by the state’s county commissions — not the county boards of health . . .

Like the delegates who sponsored the bill, the Times West Virginian editorial board has never spoken out against the end result — a ban on smoking — but about about the process by which the ban was passed.

“Right now, it’s badly handled, and I just think that voters have a hard time accepting that a body that is not accountable to the public, to the electorate, can impose these regulations on the county,” Manchin said.

If HB 2932 passes, there would also be concrete notice requirements for public comment and public hearings, and if the county commission fails to act on a ban within a certain number of days, the regulation would become void.

If the bill passes, Marion County residents might actually get a say about the smoking ban — something they’ve been denied for the past year. With the county commission responsible for the ultimate decision, in the hands of the government body it should be open to public discourse instead of passed in the back room of a local restaurant.

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• No Legal Shield in Drug Labeling, Justices Rule 

In a major setback for business groups that had hoped to build a barrier against injury lawsuits seeking billions of dollars, the Supreme Court on Wednesday said state juries may award damages for harm from unsafe drugs even though their manufacturers had satisfied federal regulators.

The ruling could have significant implications beyond drug manufacturing. Many companies have sought tighter federal regulation in recent years in part to shield themselves from litigation. . . .

The Supreme Court has been sympathetic in recent years to arguments that federal law should pre-empt state injury suits. Last year, in Riegel v. Medtronic, an eight-justice majority of the court ruled that many state suits concerning injuries caused by medical devices were barred by the express language in a federal law. Wednesday's decision addressed implied pre-emption, a different legal standard.

Drug companies and other businesses, supported by the Bush administration, had hoped the Vermont case would establish broader protections. They relied not on express language in a statute enacted by Congress, as in Riegel, but on what might be implied from federal regulatory standards and policies -- in this case, from the drug agency's authority to approve drug labels.

Producers of goods as different as antifreeze, fireworks, popcorn, cigarettes and light bulbs have sought to take refuge behind federal oversight in recent years to fend off litigation. After Wednesday's decision, those efforts are most likely to succeed if they are based on express language in a Congressional statute or a specific regulatory action that makes compliance with state requirements impossible.

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• Mich. counties, businesses clash on smoking bans  

Northern Michigan logger Roger Griffin got so upset about the anti-smoking restrictions Charlevoix County imposed on local businesses that he filed a lawsuit. . . .

The hopes of Griffin and four other plaintiffs are riding on the Michigan Supreme Court, which is weighing a legal question that affects workplaces across the state: Can communities put more stringent smoking rules in place than lawmakers?

Courts already have ruled that only the Legislature can ban smoking in restaurants and bars. But local governments have been prohibiting smoking inside other businesses, prodded by health advocates worried about the risks of secondhand smoke.

The movement started in Marquette a dozen years ago but has gained momentum more recently, spreading to 21 counties and three cities that represent nearly half of Michigan's population.

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• Smoking bills may test if tobacco is still king in Va.  

Should state government protect Moskowitz and millions of others by banning smoking in restaurants? The debate is fuming in the General Assembly this winter, where lawmakers are considering about a dozen bills that would limit lighting up.

A coalition of health-care groups, saying the costs of secondhand smoke on lives and the economy are too great to ignore, wants to ban smoking in restaurants. The measure is endorsed by Gov. Timothy M. Kaine and appears to have safe passage though the state Senate, which has approved the ban in each of the past two years.

But a snag remains in the House of Delegates, where Republican leaders say government should not referee smoking in restaurants.

"Restaurant owners don't need government to tell them what to do," said Del. Tom Gear, R-Hampton, who heads a subcommittee that has killed the bill without a recorded vote in each of the past two years.

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• Bill Tracking - Bills and Resolutions - 2009 Session: Tobacco and Tobacco Products  

* HB 1583 License plates, special; issuance to those celebrating State's tobacco heritage.

* HB 1692 Indoor Clean Air Act; prohibits smoking in all indoor restaurants and bar and lounge areas in State.

* HB 1703 Indoor Clean Air Act; unlawful for any person to smoke in establishment built after July 1, 2010.

* HB 1704 Smoke Free Air Act; smoking in public places, civil penalties.

* HB 1833 Indoor Clean Air Act; allows localities to exceed requirements that regulate smoking.

* HB 2007 Indoor Clean Air Act; smoking in restaurants in Northern Virginia. . . .

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• Madison County $10.1 billion tobacco verdict at issue in new rulings 

Stephen Tillery was the first lawyer to beat the tobacco industry in court over its marketing of light cigarettes -- but he never got the ultimate prize.

In 2005, the Illinois Supreme Court reversed a $10.1 billion verdict he won in Madison County Circuit Court in a class action case against cigarette maker Philip Morris.

But now, guided by an unrelated U.S. Supreme Court opinion last week, Tillery says he's preparing to revive the case and will try to collect.

A law professor predicts he will be thwarted by a small but key difference in the cases. . . .

Beckett said the recent U.S. Supreme Court decision involved the state of Maine's deceptive practice statute and whether it was preempted by a federal statute or FTC rulings.

Illinois is different, Beckett said, because its deceptive practices law has an exemption for companies that follow federal standards. "The Maine statute had no 'exemption' provision like the Illinois statute," Beckett said. Tillery's litigation may still have had an impact. Today, a pack of Philip Morris' Marlboro Lights is no longer emblazoned with the label "Lowered Tar & Nicotine."

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• ‘Light’ cigarette ruling will reignite Minnesota tobacco litigation  

A recent U.S. Supreme Court ruling breathed new life into at least three local cases against Big Tobacco that had been in danger of being snuffed out.

In a 5-4 ruling early last week, the nation’s highest court found that smokers are not barred by federal law from suing cigarette makers for deceiving them about the health risks from “light” cigarettes.

While Minnesota entered into a $6 billion settlement with cigarette manufacturers in 1998, the agreement only blocks state suits, not private litigation. The issue locally was whether federal cigarette labeling and advertising law pre-empted a fraud action brought under Minnesota law. A year ago, the Minnesota Court of Appeals ruled in Dahl, et al. v. R.J. Reynolds Tobacco Co., et al. that federal law did not shield tobacco companies from state-law fraud and misrepresentation claims over how they advertised “light” cigarettes. R.J. Reynolds sought review from the Minnesota Supreme Court, which stayed the case pending the U.S. Supreme Court’s resolution of the case decided last week.

The U.S. high court decision paves the way for the R.J. Reynolds case – and two other similar cases in Minnesota trial courts – to proceed to trial, according to Kay Nord Hunt, one of the attorneys representing the R.J. Reynolds plaintiffs on appeal.

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• Documents offer look at big tobacco's tactics  

Two studies released Tuesday allege that big tobacco companies tried to undermine anti-smoking policies in Asia by infiltrating a research institute in Thailand and providing funding for one in China.

Public health researchers from the University of Sydney and the University of Edinburgh analyzed internal industry documents made public following litigation in the United States. The researchers claimed that Philip Morris planted a scientist in Chulabhorn Research Institute in Bangkok in a bid to get researchers to play down the impact of secondhand smoking.

A separate study including a Mayo Clinic researcher alleges that British American Tobacco provided funding in China for the Beijing Liver Foundation in a campaign to shift the focus there away from smoking dangers to ailments like liver disease.

Both companies denied the charges presented online in the Public Library of Science Medicine journal. The two studies were partly funded by the National Cancer Institute in the U.S.

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• USSC cigarette ruling has secondhand results in W.Va. 

If tobacco companies deceived smokers of "light" and "low tar" cigarettes, smokers can sue them under state consumer laws, the U. S. Supreme Court decided on Dec. 15.

Five Justices agreed that federal labeling laws do not pre-empt suits in state courts alleging that tobacco companies violated a duty not to deceive smokers.

In West Virginia, the decision allows Circuit Judge Arthur Recht of Wheeling to lift a stay he imposed on all tobacco suits in West Virginia.

Recht, who handles tobacco litigation by appointment of the Supreme Court of Appeals, imposed the stay while awaiting the decision.

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• Light Cigarettes Makers May Be Sued, Court Rules  

Tobacco companies that marketed "light" cigarettes may be sued for fraud, the Supreme Court ruled on Monday in a 5-to-4 decision that will bolster dozens of lawsuits claiming billions of dollars in damages. . . .

Sixteen years ago, in a decision that produced no majority opinion, a four-justice plurality said the phrase "based on smoking and health" in the labeling law did not apply to pre-empt suits under state laws based on the "general duty not to make fraudulent statements." Justice John Paul Stevens, joined by three justices no longer on the court, wrote the plurality opinion in the case, Cipollone v. Liggett Group Inc. He conceded that the distinction he drew lacked "theoretical elegance."

Indeed, the lower courts have struggled to make sense of that fractured decision. At the argument of the Altria case in October, its lawyer, Theodore B. Olson, called the plurality opinion in Cipollone "baffling, confusing, litigation-generating."

Justice Stevens asked Mr. Olson whether the court would need to "reject the fraud analysis in Cipollone" for Altria to win. Mr. Olson said yes.

But Justice Stevens, writing for the majority on Monday, instead reaffirmed his plurality opinion in Cipollone and turned it into binding law. . . .

"It seems particularly inappropriate," Justice Stevens wrote, "to read a policy of authorization into the F.T.C's inaction" given tobacco companies' failure to tell the commission about studies concerning how "consumers of 'light' cigarettes actually inhale." . . .

Justice Thomas said that some kinds of fraud claims against cigarette makers may go forward, just not those concerning "smoking and health."

"Thus," he wrote, "if cigarette manufacturers were to falsely advertise their products as 'American-made' or 'the official cigarette of Major League Baseball,' state-law claims arising from that wrongful behavior would not be pre-empted."

Forbidding lawsuits based on health claims, Justice Thomas said, would not mean consumers lack protection, as tobacco marketing is subject to regulatory oversight.

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• Editorial: Clearing a Legal Haze 

A smoke-and-mirrors legal approach failed the tobacco companies yesterday in their latest attempt to shield themselves from private lawsuits. . . .

It often makes sense to avoid a hodgepodge of state and local rules governing big business in favor of uniform federal strictures. In those cases, the federal government should have exclusive jurisdiction in crafting and regulating the rules. But the tobacco companies in this case tried to stretch the federal Labeling Act to cover much more than Congress intended. They did so in an attempt to shield companies from lawsuits that even the FTC endorsed as a legitimate vehicle for the protection of consumers. The FTC and five justices came to the conclusion that tobacco companies can and should be held accountable if they deceptively advertised their products. The tobacco companies would be smart to finally come to grips with that.

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• Altria Case Deals Blow to Efforts Reining In Lawsuits 

The Supreme Court ruled that consumers can sue Altria Group Inc.'s Philip Morris USA unit under state unfair-trade laws for its advertising of "light" cigarettes, striking a blow against a broad effort by U.S. corporations to limit their exposure to suits filed under state law.

The 5-4 ruling rejected Altria's claim that federal cigarette-labeling laws, which bar states from imposing their own health warnings on cigarette packages, pre-empt consumer lawsuits.

The suit, filed under the Maine Unfair Trade Practices Law, alleges that Altria misled consumers into believing that light cigarettes, which contain less tar than regular varieties, were less dangerous to smoke. The suit says the companies knew smokers typically make up the difference in tar by taking longer or deeper puffs.

Similar suits are pending in other states, exposing the tobacco industry to a new avenue of attack by smoking opponents. . . .

Justice John Paul Stevens, writing for a five-justice majority that included three other members of the court's liberal wing plus Justice Anthony Kennedy, said Maine's antifraud statute complements federal regulatory goals, rather than interfering with them.

He said the Federal Trade Commission "has long depended on cooperative state regulation to achieve its mission because, although one of the smallest administrative agencies, it is charged with policing an enormous amount of activity."

Justice Clarence Thomas, in dissent, said the majority's ruling defeats an "express congressional purpose, opening the door to an untold number of deceptive-practices lawsuits across the country." . . .

For Justice Stevens, the Altria ruling vindicates an opinion he delivered in a cigarette case 16 years ago. In Cipollone v. Liggett Group, Justice Stevens, citing a general presumption against pre-empting state laws unless necessary, upheld portions of a lawsuit . . .

Mr. Obama has said regulatory failures contributed to the nation's economic crisis. A Democratic administration is likely to view state action as complementing federal efforts to police markets, enforce environmental laws or promote workplace safety.

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