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

In sum, because we find that numerous issues in this case are not susceptible to generalized proof but would require a more individualized inquiry, we conclude that the predominance requirement of Rule 23 has not been satisfied. We recognize that a court may employ Rule 23(c) (4) to certify a class as to common issues that do exist, "regardless of whether the claim as a whole satisfies Rule 23(b) (3)'s predominance requirement." In re Nassau County Strip Search Cases 461 F.3d at 227. Nevertheless, in this case, given the number of questions that would remain for individual adjudication, issue certification would not "reduce the range of issues in dispute and promote judicial economy." Robinson v Metro-N. Commuter R.R. 267 F.3d 147, 168 (2d Cir. 2001). Certifying, for example, the issue of defendants' scheme to defraud, would not materially advance the litigation because it would not dispose of larger issues such as reliance, injury, and damages. See id at 167 n.12. We therefore decline plaintiffs' request for issue certification.

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While redressing injuries caused by the cigarette industry is 'one of the most troubling . . . problems facing our Nation today', . . . not every wrong can have a legal remedy, . . . at least not without causing collateral damage to the fabric of our laws. Plaintiffs' putative class action suffers from an insurmountable deficit of collective legal or factual questions.
JOHN M. WALKER, JR., Circuit Judge, for the Appeals panel in Schwab.

Cigarette tax reduced sales, senator says 

State Sen. Herman Quirmbach, D-Ames, gave the Legislature a pat on the back Monday for passing a $1 cigarette tax increase last year. He says the tax increase is responsible, in part, for reducing cigarette sales.

The Iowa Department of Revenue said just over 5 billion cigarettes were sold the year before the tax went into effect, a number that dropped to 3.2 billion in the 12 months after the tax increase was implemented.

"We have made tremendous progress, in just a single year, in the reduction of this deadly threat that burdens and threatens the lives and the health of so many of our Iowa citizens and constituents," Quirmbach said.

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N.Y. Plans Nation's Highest Cigarette Tax  

New York's government leaders have agreed to boost the state cigarette tax by $1.25 per pack to create the nation's highest state cigarette tax, officials said Wednesday.

New York's $2.75-per-pack tax would jump ahead of New Jersey for the highest state tax in the nation. New York has been ranked the 16th highest with a tax of $1.50 tax per pack.

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EDITORIAL: Smoke screen for smoking ban 

In order to protect favored interests, several committee members and some of their supporters in the Legislature have attempted to complicate the simplest of issues. The correct path couldn't be more obvious. It has been blazed by science and by thousands of lawmakers around the world who have relied on that science to shape legislation.

When the conference committee gets around to meeting again at the end of April it, too, should rely on well-established science and move to protect the health of all Pennsylvanians by crafting a comprehensive indoor smoking ban.

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Smoking out the smoking gene 

That raises interesting issues, particularly as genetic testing becomes easier. DeCODE has already announced it will add rs1051730 to the standard screen it offers to those who wish to know their susceptibility to diseases. The day is not far off, therefore, when those who take the essentially irrational decision to start smoking tobacco will be able to find out in advance exactly how foolish they are being.

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America's smoking bans are causing fatal accidents 

BANNING smoking in public places is supposed to save lives. It encourages people to smoke less, so they do themselves and those around them less harm. That, at least, is the theory. Whether it works may depend on how uniform anti-smoking legislation is.

Although many countries have introduced national bans, America has taken a piecemeal approach. A number of states, counties and municipalities have introduced various types of bans, and have enforced them with varying degrees of rigour.

The problem with this, say Scott Adams and Chad Cotti, economists at the University of Wisconsin-Milwaukee, is that smoking bans seem to have been followed by an increase in drunk-driving and in fatal accidents involving alcohol. In research published in the Journal of Public Economics, the authors find evidence that smokers are driving farther to places where smoking in bars is allowed. . . .

How this weighs up against the long-term health effects of smoking bans is unclear. But it serves as a warning to well-meaning legislators.

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R.J. Reynolds Tobacco Company Wins Appeal in 'Lights' Case 

The 2nd U.S. Circuit Court of Appeals today reversed a lower court's ruling in a "lights" class-action suit brought against cigarette makers, decertifying the nationwide class in Schwab.

In its ruling, the court stated: "Because individual issues outweigh issues susceptible to common proof, the class is not maintainable ... "

"We are certainly pleased with the court's ruling and agree with its reasoning," said Martin L. Holton III - general counsel for R.J. Reynolds Tobacco. "Numerous courts across the country have held that claims such as these simply cannot be tried as class actions."

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Suit on Light Cigarettes Is Thrown Out 

The tobacco industry scored a legal victory on Thursday when a federal appeals court threw out an $800 billion class-action lawsuit on behalf of smokers of light cigarettes who said they were misled to believe the cigarettes were safer than regular ones.

Plaintiffs' lawyers had wanted to represent potentially millions of people across the country who had smoked light cigarettes, but the court found that it was impossible to tell why smokers chose light cigarettes, so the group could not be treated as a class. Instead, smokers would have to sue individually.

"Individualized proof is needed to overcome the possibility that a member of the purported class purchased lights for some other reason than the belief that lights were a healthier alternative," the ruling said.

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N.C. Public Health Becomes a Partner in New National Program to Teach Smokers How to Become an EX®  

RALEIGH – An unprecedented public health campaign created by an alliance of national organizations and state health agencies, including The North Carolina Division of Public Health, was launched today in Washington, DC. The new program, called EX®, will change the way smokers feel about the difficult process of quitting and guide them to valuable resources to build a successful quit attempt.

Not since 1968-1970, when the Fairness Doctrine was applied to anti-tobacco messages, have so many public health organizations aligned to promote a concerted smoking cessation message to the public.

This new public education effort will encourage the more than 22 percent of North Carolina adults who smoke to approach quitting smoking as “re-learning life without cigarettes.” . . .

The North Carolina Division of Public Health will promote its free, confidential Quitline for those who seek telephone support to help quit. The N.C. Tobacco Use Quitline, 1-800-QUIT-NOW (784-8669), is available daily, 8 a.m. until midnight, in English, Spanish and many other languages. The Quitline can double a tobacco user’s chances of quitting for good. Learn more about the Quitline at www.tobaccopreventionandcontrol.ncdhhs.gov.

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Bill to Force FDA Tobacco Regulation Moves Through Energy and Commerce 

An increasingly bipartisan bill that would require the Food and Drug Administration to regulate tobacco products advanced from a House panel on Wednesday, setting up its passage by the full House.

The Energy and Commerce Committee approved, 38-12, the bill (HR 1108). A House leadership aide said timing for floor debate is uncertain. . . .

The committee rejected nine amendments offered by Republicans, including one by Burgess that would have allowed the FDA to ban tobacco outright. Rogers and Steve Buyer , R-Ind., offered five amendments that would have delayed implementation of the bill for up to 10 years after its enactment, in order to allow the FDA time to improve its regulation of food, drugs, medical devices and overseas factories. . . .

Dingell’s manager’s amendment made a host of changes aimed at pacifying both industry groups and Republicans.

Convenience stores won provisions requiring the regulation of tobacco sales beyond over-the-counter transactions — putting Internet and mail-order retailers on the same footing as them.

Other provisions would require the government to consider whether retailers had programs in place to prevent sales of tobacco products to minors, and whether they had been subject to state fines, before prohibiting stores from selling tobacco products or issuing fines in response to violations.

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House panel endorses FDA regulation of tobacco products 

A bill giving the federal Food and Drug Administration the authority to regulate tobacco products appears headed for House passage.

By a vote of 38-12 yesterday, the House Energy and Commerce Committee approved the landmark legislation -- the first time any House panel has voted for such a measure.

Eleven Republicans joined the committee's Democrats in voting for the measure. Five of those lawmakers, including Rep. Baron Hill, D-9th District, Indiana, were from tobacco-producing districts. . . .

The House committee's action came as opposition ended from other groups -- such as convenience store operators and some small tobacco companies, including the Louisville-based National Tobacco Co. -- after lawmakers agreed to make changes in the bill. . . .

The lone Kentucky lawmaker on the panel, Rep. Ed Whitfield, R-1st District, voted against the bill, though he said he supported combating tobacco use.

"The FDA's mission is to protect public health by assuring the safety and efficacy of our nation's food and drugs -- and tobacco is neither a food nor a drug," Whitfield said in a statement. "Tobacco is a legal product that some people choose to use despite knowing the risks associated with it."

Meanwhile, Rep. John Yarmuth, D-3rd District, said his concerns about the legislation were addressed when the panel agreed to give smaller tobacco companies up to four years to comply with some provisions and to join together to pay for testing products that may be required by the FDA.

Ron Tully, National Tobacco's vice president of corporate affairs, said that without the changes the bill would threaten the survival of his firm and others of similar size.

National Tobacco has 300 employees -- 200 of them in Louisville. The company makes cigarettes, smokeless tobacco and so-called "roll-your-own" products.

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Lawyers Fight DNA Samples Gained on Sly  

“The law cannot tolerate such back-door methods, which seize something that any reasonable person expects to remain private,” Mr. Gallego’s lawyer, David Lynch, wrote in a motion to suppress the DNA evidence extracted from the cigarette butt.

The privacy implications of surreptitious DNA sampling may extend beyond individual investigations. The police, critics say, could collect DNA deemed “abandoned” from targeted individuals and monitor their movements even if they are not suspected of committing a serious crime. Innocent people whose DNA turns up unexpectedly may find themselves identified by a database file that they did not know existed.

“Police can take a DNA sample from anyone, anytime, for any reason without raising oversight by any court,” said Elizabeth E. Joh, a law professor at University of California, Davis, who studies the intersection of genetics and privacy law. “I don’t think a lot of people understand that.”

Law enforcement officials say they are just trying to solve crimes. Over the last few years, several hundred suspects have been implicated by the traces of DNA they unwittingly shed well after the crime was committed, according to law enforcement officials. Many more have been eliminated from suspicion without ever knowing that their coffee cups, tissues, straws, utensils and cigarette butts were subject to DNA analysis by the police.

“It’s a great tool,” said Micki Links, a sergeant in the Sacramento sheriff’s homicide division. “Our hands are tied on a lot of things as far as what we can do and what we can search, so when we find something that’s within the law, we’re going to use it.” . . .

Suspects may be wising up. After smoking another cigarette on the patio, Mr. Reed took apart the butt, removed the filter’s wrapper and shredded it, according to court documents. He had seen the popular television show “CSI,” where DNA often nails the suspect, he told the detective. Then he placed the remains in his pocket.

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• Appeals Court Rejects Class Action In 'Light' Cigarettes Marketing Case 

A federal appeals court decertified a class Thursday in a lawsuit seeking up to $800 billion against Altria Group Inc.'s Philip Morris USA and other cigarette makers over the marketing of "light" cigarettes.

In an order Thursday, the 2nd Circuit Court of Appeals reversed a lower court judge's 2006 decision certifying a class of smokers in the closely watched case. . . .

"Because individual issues outweigh issues susceptible to common proof, the class is not maintainable," the three-judge panel found Thursday. . . .

"Each plaintiff in this case could have elected to purchase light cigarettes for any number of reasons, including a preference for the taste and a feeling that smoking lights was "cool'," the circuit said.

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Paper Chase: House panel approves tobacco regulation bill 

he US House Energy and Commerce Committee [official website] Wednesday voted 38-12 to approve the Family Smoking Prevention and Tobacco Control Act [HR 1108 text and amendment, PDF; JURIST report], a bill that would give the Food and Drug Administration (FDA) regulatory power over tobacco products. Supporters say the bill will help to better inform the public of the risks of smoking and make cigarettes safer, but opponents say it might give the public a false sense of security about smoking and that the FDA might not be able to handle the burden of regulation. The bill now goes to the House floor for consideration.

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Research targets carcinogens 

Before Ralph Dewey, Ramsey Lewis and one of Dewey's former students employed at the University of Kentucky began their studies on tobacco plants, which would lead to a reduction in the presence of harmful carcinogens known as tobacco-specific nitrosamines, or TSNAs, they first used the beans to mediate herbicide tolerance.

That was seven years ago, and tobacco company Phillip Morris took notice, offering to sponsor the project.

Dewey, a professor of crop science, said it will take several more years to implement the research in a widespread manner.

But it doesn't mean they haven't made progress.

According to Dewey, the rationale of the project -- which impacts smokeless products such as chewing tobacco -- was that by reducing the precursor to N-Nitrosonornicotine, or NNN, which is one of the aforementioned TSNAs, NNN itself could be reduced in the plants.

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