http://www.tobacco.org/newsfeed/org/naag.rss Latest top tobacco news headlines en-us http://www.abanet.org/publiced/preview/briefs/pdfs/07-08/07-562_RespondentAmCu48States.pdf http://tobacco.org/news/267464.html QUESTIONS PRESENTED 1. Whether the Federal Cigarette Labeling and Advertising Act expressly preempts state-law claims that a cigarette company violated the Maine Unfair Trade Practices Act by falsely representing its “light” cigarettes to the public when the predicate state-law duty of such claims is the duty not to deceive. 2. Whether such claims are impliedly preempted where the FTC has never exercised its rulemaking power to address the conduct at issue nor defined the terms at issue in this dispute. . . . SUMMARY OF ARGUMENT This case presents the questions whether the FCLAA or the actions of the FTC preempt state-law deception claims arising out of Petitioners’ practices with respect to “low tar and nicotine” and “light” cigarettes. Neither the FCLAA nor the actions of the FTC license Petitioners to deceive consumers in violation of state law. Immunizing Petitioners from the consequences of the alleged wrongful conduct is not a result that should be presumed without clear language and intent, neither of which is present here. 1. In Cipollone v. Liggett, 505 U.S. 504 (1992), the Court held that the FCLAA does not preempt claims resting upon false representation of a material fact or concealment of a material fact by tobacco companies where such claims are founded upon a general duty under state law not to deceive. The suit at issue here brings precisely such claims. It seeks economic, not personal injury, damages, under Maine’s general prohibition against any “material representation, omission, act or practice that is likely to mislead consumers acting reasonably under the circumstances.” Me. Rev. Stat. Ann. tit. 5, § 207 (Supp. 2007). Because the lawsuit before the Court is predicated upon a general statutory prohibition against deception (that the manufacturers made false statements and concealed information regarding “light” cigarettes), under Cipollone it is not preempted. To find otherwise would disrupt and do serious harm to the sovereigns’ complementary efforts to protect consumers, which would have adverse implications beyond the “light” cigarettes dispute before the Court here. State law suits pursuant to state unfair practices and consumer protection statutes combating deceptive practices are a critical complement to the administrative and prosecutorial efforts of the FTC. In fact, recognizing that it cannot combat consumer fraud on its own, FTC regulations direct the agency “to assist and cooperate” with state consumer protection efforts. One common outgrowth of that cooperation is that the FTC and the States often target the same wrongdoers, which sometimes results in separate settlements that provide different forms of relief. There is no exception in this complementary regulatory scheme for fraud or deception by cigarette manufacturers. Indeed, the FTC acknowledges the States’ vital part in prohibiting deception by tobacco companies. 2. Petitioners’ arguments that the FTC has somehow impliedly preempted the state-law claims are patently incorrect. Nothing in the text, structure, or regulatory history of the FTC Act or in the actions of the FTC relating to “light” cigarettes supports implied preemption. Petitioners are not claiming that the FTC Act itself imposes requirements on tobacco companies that conflict with state law. Nor could they, given that the FTC Act lacks an express preemption provision and instead contains a broad saving clause protecting state remedies and causes of action. In addition, Congress imposed heightened requirements for FTC rulemaking, and the FTC’s procedural rules require that it explain the impact of any of its rules on state law. And petitioners do not assert that the FTC has promulgated specific rules that preempt state-law actions with respect to “low tar” and “light” cigarettes. Rather, Petitioners’ implied preemption claim is based on their assertion that the FTC has blessed tobacco companies’ “light” cigarette advertisements through a history of less formal actions, such as consent decrees reached with individual companies. But neither the consent decrees nor the other actions relied upon by Petitioners mandated or approved Petitioners’ “light” and “low tar” advertisements. Moreover, in none of those actions did the FTC ever suggest that State consumer protection laws present an obstacle to, or are preempted by, some sort of FTC policy. Indeed, the FTC has eschewed any suggestion that its actions have resolved the issue of tobacco companies’ deceptive practices regarding “low tar” cigarettes. . . . * * * The common purpose of the FTC Act and State unfair trade practices and consumer protection acts, such as Maine’s, is to protect consumers from deceptive practices. The FTC has been most sensitive to this relationship, as have the courts. Finding preemption here would run counter to how the FTC and the States have worked cooperatively together, and would do serious harm to that relationship and to the protections afforded consumers through their efforts. The particular claims of deception here fall squarely within those permitted under Cipollone, and the FTC has not established a cohesive policy impliedly preempting the States with respect to deceitful conduct by tobacco companies regarding “low tar” and “light” cigarettes. For these reasons, the Court should find that the state-law claims before it are not preempted. ABA Journal Wed, 18 Jun 2008 04:00:00 GMT http://www.prnewswire.com/cgi-bin/stories.pl?ACCT=104&STORY=/www/story/06-16-2008/0004832637&EDATE= http://tobacco.org/news/267238.html Forty (40) Attorneys General, their staffs, federal and foreign officials, private industry chief executive officers and executives, trade groups and academics will convene to discuss a number of issues, including technology and crimefighting, rising energy and fuel costs and the environment, law enforcement challenges to protecting children, international cross-border issues, the digital television transition, constitutional law, tobacco, federal legislation and other legal issues. PR Newswire aplemmer@naag.org (SOURCE National Association of Attorneys General ) Mon, 16 Jun 2008 04:00:00 GMT http://www.corporatecrimereporter.com/camelsnus061108.htm http://tobacco.org/news/266772.html So, there I was, waiting in line at the Sheetz store in Weston, West Virginia. On the counter in front of me were about 50 of these little tins laid out on the counter. They smell like mints. They looked like mint containers. And there was a sign next to them that said - free samples. Young and old could take one. And no one would object. The cashier behind the counter looked like a teenager himself. . . . The slip cover over the mint container says: Camel Snus Trial Offer. In the container are little pouches of tobacco that you stick under you lip. Camel Snus is a product of R.J. Reynolds. And Reynolds is a party to the Master Settlement Agreement between the state Attorneys General and the tobacco companies. That agreement includes a ban on free tobacco samples. There is an exception to the ban on free samples, including "the conducting of consumer testing or evaluation of tobacco products with persons who certify that they are adults." But that clearly wasn't going on at the Sheetz I was at. The Camel Snus were on the counter. . . . An attorney at the National Association of Attorneys General said that if Reynolds were giving Camel Snus to retailers as free samples to be handed out, "it would appear to violate the terms of the agreement." And Eric Lindblom, director for policy research at Campaign for Tobacco Free Kids in Washington, D.C., said that it was clearly a violation of the agreement and did not fit within the consumer testing exception. Corporate Crime Reporter Wed, 11 Jun 2008 04:00:00 GMT http://www.reuters.com/article/domesticNews/idUSN0450607320071204?sp=true http://tobacco.org/news/256214.html - Six U.S. states sued the maker of Camel cigarettes on Tuesday, charging that a promotion in an issue of Rolling Stone magazine violates a 1998 agreement not to use cartoons in its marketing efforts. The suits focus on ads for the Camel brand, produced by R.J. Reynolds Tobacco Co., which appeared in a nine-page fold-out section in the November 15 issue of the music and popular culture magazine. Reuters Tue, 04 Dec 2007 05:00:00 GMT http://tobaccofreekids.org/Script/DisplayPressRelease.php3?Display=1044 http://tobacco.org/news/255800.html the November 15, 2007, issue of Rolling Stone magazine includes what appears to be a giant, nine-page ad for R.J. Reynolds’ Camel cigarettes that features a four-page cartoon foldout, despite a prohibition in the 1998 state tobacco settlement on the use of cartoons to market cigarettes. We urge state attorneys general to immediately investigate this ad as a possible violation of both the tobacco settlement’s prohibition on the use of cartoons and its prohibition on targeting youth in the marketing of tobacco products. It is difficult to see this nine-page spread as anything but an effort by R.J. Reynolds, aided and abetted by Rolling Stone, to push the legal limits and get around the tobacco settlement’s explicit ban on the use of cartoons to market cigarettes Rolling Stone has told the media that the four-page cartoon foldout is “editorial content” produced by the magazine despite the fact it is surrounded by and indistinguishable from R.J. Reynolds’ Camel ad. This is a meaningless distinction to the magazine’s readers, including some 1.5 million youth, who will see the nine-page spread as one giant ad for Camel cigarettes (estimate on the number of youth readers, aged 12-17, comes from the magazine’s media kit. Rolling Stone may claim that the four-page cartoon spread is not part of the Camel ad that surrounds it, but the cartoon’s content, layout and placement make it appear to be an integral part of the ad. That can’t be an accident. Why would the spread begin and end with a Surgeon General’s warning if it wasn’t a cigarette ad? The end result of this nine-page spread is exactly what the tobacco settlement sought to stop, which is the use of cartoon characters to market cigarettes. http://tobaccofreekids.org/reports/camel/rollingstone_112007/ Campaign for Tobacco-Free Kids Mon, 26 Nov 2007 05:00:00 GMT http://www.virginia.edu/uvatoday/newsRelease.php?id=3117 http://tobacco.org/news/254494.html Law professor Richard Bonnie, who recently served as chair of the Institute of Medicine's Committee on Reducing Tobacco Use, testified before the House Subcommittee on Health on the bill HR1108, which would among other things give the United States Food and Drug Administration the authority to regulate tobacco products. His testimony, delivered Oct. 3, was based on the Institute of Medicine report, "Ending the Tobacco Problem: A Blueprint for the Nation." The report outlined a plan for the federal and state governments to reduce tobacco use to the point that it is no longer a significant health problem in the United States. "Our report was not only about federal legislation and the FDA. It had a much broader scope, and a lot of the recommendations were directed to the states and private insurers," Bonnie said. "A key component of the blueprint for the nation, as we described it, is for the federal government to get off the sidelines. We need to change the regulatory landscape of tobacco control, and an important part of doing that is giving the FDA jurisdiction to regulate tobacco products." . . . Bonnie also gave the keynote address to the Conference on Tobacco sponsored by the National Association of Attorneys General, held Oct. 15 in Seattle. Southern Tobacco Communities Project mmw3v@virginia.edu Fri, 07 Sep 2007 04:00:00 GMT http://americanlegacy.org/777.htm http://tobacco.org/news/246912.html Today, state attorneys general ("AGs") from around the country have once again approached the heads of Hollywood's major movie companies to request that they take significant steps to protect youth from exposure to smoking scenes on film, which can recruit up to 390,000 youth a year to smoke. In letters to the Motion Picture Association of America (MPAA), National Association of Theater Owners (NATO), Screen Actors Guild and a handful of the largest movie companies, the AGs have urged the movie industry to adopt recommendations by the Harvard School of Public Health to remove smoking depictions from films accessible to youth. American Legacy Foundation Tue, 15 May 2007 04:00:00 GMT http://www.latimes.com/entertainment/news/movies/la-fi-moviesmoking11may11,0,846645.story http://tobacco.org/news/246676.html The Motion Picture Assn. of America announced today that smoking will be considered when rating movies and "depictions that glamorize smoking or movies that feature pervasive smoking outside of an historic or other mitigating context may receive a higher rating." Smoking will become a factor in decisions by the Classification and Rating Administration, along with violence, language, nudity, drug abuse and other elements. "There is broad awareness of smoking as a unique public health concern due to nicotine's highly addictive nature, and no parent wants their child to take up the habit,'' MPAA Chief Executive Dan Glickman said. "The appropriate response of the rating system is to give more information to parents on this issue." But the MPAA resisted calls by some antismoking advocacy groups to give any film with smoking a mandatory "R" rating . . . Films whose ratings are affected by smoking will include explanations, such as "glamorized smoking" or "pervasive smoking." Los Angeles Times jim.puzzanghera@latimes.com (Jim Puzzanghera, Times Staff Writer) Thu, 10 May 2007 04:00:00 GMT http://www.oag.state.md.us/Press/2007/050307.htm http://tobacco.org/news/246443.html In an effort to reduce the risk of smoking and its impact on children, Attorney General Douglas F. Gansler and Attorneys General from across the country have asked Hollywood's major movie studios to take the advice of the Harvard School of Public Health: remove smoking depictions from films accessible to children. "After years of letters and meetings, the Motion Picture Association of America told the Attorneys General last October that it was going to seek the advice of the experts at Harvard," said Attorney General Gansler. "If the studios are concerned about the health of our children, they will take that advice and remove smoking in movies viewed by children." Maryland Attorney General rguillory@oag.state.md.us Thu, 03 May 2007 04:00:00 GMT http://deseretnews.com/dn/view/0,1249,650213701,00.html http://tobacco.org/news/237841.html A federal judge on Friday put Utah one step closer to possibly losing a significant chunk of settlement cash from tobacco companies. After a hearing Friday, U.S. District Judge Dee Benson ordered Utah lumped into binding arbitration with some 50 states and two territories against the tobacco companies, who have claimed the states have dragged their feet in seeking legal action against other tobacco companies who chose not to participate in a 1998 settlement. This, they argue, puts participating tobacco companies, which have paid out billions to the states, at a market disadvantage. Participating companies, such as R.J. Reynolds Tobacco Co., claim the states deserve a reduction in settlement funds, at least for the year 2003. For Utah this means it could lose its entire 2003 settlement payment of $32.6 million, posingpotentially serious problems fornumerous state health programs that rely on settlement funding. Nationally the total loss has been tallied at $1.2 billion, according to court documents. Deseret News gfattah@desnews.com (Geoffrey Fattah Deseret Morning News) Sat, 09 Dec 2006 05:00:00 GMT http://www.adweek.com/aw/national/article_display.jsp?vnu_content_id=1003348186 http://tobacco.org/news/235202.html In an ironic twist, the American Legacy Foundation has called on tobacco companies to pull their parent-targeted anti-smoking ads, at least in part because an upcoming study in the December issue of the American Journal of Public Health suggests that cigarette manufacturers' spots actually increase the likelihood that teens will smoke in the future. Philip Morris USA, however, the only tobacco company currently on air with youth-focused anti-smoking ads, refutes the study's findings and contends that its initiative for encouraging parents to discuss smoking with the children (themed "Talk. They'll listen") is attaining its goals. "The tobacco industry ads are a trick on young people," said Legacy CEO Cheryl Healton, in a statement. "By creating these ads, the industry claims to be trying to help our nation's youth and acts as if these ads are truly aimed at discouraging smoking. However, this study, along with previous research proves that this is simply not the case. The tobacco industry is in the business of selling cigarettes. What does help discourage youth smoking rates are ads and messages provided by sources that are independent of the tobacco industry." Vermont Attorney General William Sorrell said he would meet with other AGs to determine if tobacco-industry prevention ads violate the prohibition on youth marketing. . . . "[Our] goal in this area is to have an effective youth smoking prevention program and to that end we believe in collaborative dialogue with the public health community to help identify any potential improvements to our youth smoking prevention communications. The campaign is directed at parents because that is what experts tell us is the most effective way." Ad Week Thu, 02 Nov 2006 05:00:00 GMT http://www.wwl.com/Article.asp?id=294211&spid= http://tobacco.org/news/234557.html Louisiana Attorney General Charles Foti says that for the first time a motion picture company has agreed to put anti-smoking public service announcements on DVD's of movies that show characters smoking. Foti says the Weinstein Company is the first to take action after a letter to Hollywood's 13 major motion picture companies. The request came from Foti and Attorneys General from 40 other states. Beginning with the December release of "Clerks II," the Weinstein Company will include the warnings. WWL 870 AM / 105.3 FM yourname@yourdomain.com (Dave Cohen / WWL News Director) Wed, 25 Oct 2006 04:00:00 GMT http://www.norwalkadvocate.com/news/local/state/hc-24175451.apds.m0067.bc-ct-filmsoct24,0,523150.story?track=rss http://tobacco.org/news/234516.html You've seen the no-smoking signs at neighborhood theaters. Get ready to install one in your TV set. Beginning with the December release of "Clerks II," The Weinstein Co. will begin placing anti-smoking public service announcements in DVD releases of its films. "As a former smoker, I feel like it's my responsibility to do everything I can to educate young people about the dangers of smoking," Harvey Weinstein said in a statement released Tuesday. "We really hope this initiative will have an impact with viewers across the country." Weinstein and his brother Bob said they decided to start inserting the anti-smoking messages at the request of the attorneys general of more than 40 states, including Connecticut. The messages are being produced by the American Legacy Foundation AP Tue, 24 Oct 2006 04:00:00 GMT http://tobaccofreekids.org/Script/DisplayPressRelease.php3?Display=945 http://tobacco.org/news/234154.html Today's announcement by several state attorneys general that they have reached a settlement with R.J. Reynolds to stop the marketing of candy and alcohol-flavored cigarettes in the United States is a welcome step forward in restricting the marketing of tobacco products to America's children. The fact that RJR agreed to stop marketing these blatantly youth-oriented products only when threatened with legal action speaks volumes about the tobacco industry's continued efforts to market to kids, as confirmed by U.S. District Court Judge Gladys Kessler in August when she found the major cigarette companies guilty of violating civil racketeering laws. There is no more flagrant recent example of tobacco marketing to kids than RJR's candy and alcohol-flavored cigarettes. . . . Despite their claims of reform, the evidence is clear that the tobacco companies continue to mislead consumers and market to children, as Judge Kessler found in her recent ruling: "Defendants continue to engage in many practices which target youth, and deny that they do so." R.J. Reynolds' marketing of candy and alcohol-flavored cigarettes is a prominent example. RJR has marketed candy and fruit-flavored versions of its Camel cigarettes with names like Kauai Kolada, Twista Lime, Warm Winter Toffee and Mocha Mint. RJR has also marketed alcohol-flavored cigarettes and, under pressure from state attorneys general, stopped a promotion called "Drinks On Us" that involved coasters with mixed drink recipes and slogans encouraging binge drinking. Campaign for Tobacco-Free Kids Wed, 11 Oct 2006 04:00:00 GMT http://www.bloomberg.com/apps/news?pid=newsarchive&sid=akd.AGXhiB7g http://tobacco.org/news/233976.html Reynolds American Inc.'s R.J. Reynolds Tobacco Co. reached an agreement with 38 states to limit marketing of cigarettes with the names of fruit or candy after complaints the practice attracted young people to smoking. The agreement between R.J. Reynolds, the second-largest U.S. tobacco maker, and states including New York and California bans the company from giving its cigarettes names such as Warm Winter Toffee and Beach Breezer. Reynolds can still sell flavored cigarettes, provided the marketing doesn't attract children, Reynolds spokesman Fred McConnell said today. Lawyers for the states, including New York Attorney General Eliot Spitzer, claimed Reynolds's marketing of flavored cigarettes violated a 1998 settlement with 46 states seeking reimbursement of money spent treating sick smokers. The deal, under which Reynolds and other tobacco makers agreed to pay $206 billion, includes rules against marketing cigarettes to kids. Bloomberg News cburritt@bloomberg.net (Chris Burritt and Bob Van Voris) Wed, 11 Oct 2006 04:00:00 GMT