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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