Up in Smoke: From Legislation to Litigation in Tobacco Politics
Publication Year: 2012
In recent years, tobacco politics has been a multi-layered issue fraught with significant legal, commercial, and public policy implications. From the outset, Martha A. Derthick's Up in Smoke took a nuanced look at tobacco politics in a new era of “adversarial legalism” and the consequences, both intended and unintended, of the MSA (Master Settlement Agreement).
Now, with a brand new 3rd edition, the book returns to “ordinary politics” and the passage of the Family Smoking Prevention and Tobacco Control Act which gave the FDA broad authority to regulate both the manufacture and marketing of tobacco products. Derthick shows our political institutions working as they should, even if slowly, with partisanship and interest group activity playing their part in putting restraints on cigarette smoking.
- Front Matter
- Back Matter
- Subject Index
- Chapter 1: A New Way of Regulating Tobacco
- Chapter 2: The Ordinary Politics of Legislation
- Chapter 3: Ordinary Torts: Litigation Before It Was Substituted for Legislation
- Chapter 4: The Drive for FDA Regulation
- Chapter 5: The New Wave of Litigation
- Chapter 6: The Changed Context of Policymaking
- Chapter 7: The 1997 Settlement Dies in Congress
- Chapter 8: The FDA Regulations Die in Court
- Chapter 9: The Master Settlement Agreement of 1998
- Chapter 10: The Aftermath of the MSA
- Chapter 11: After Litigation, a Return to Legislation
- Chapter 12: Ordinary Politics Versus Adversarial Legalism
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Library of Congress Cataloging-in-Publication Data
Up in smoke : from legislation to litigation in tobacco politics/Martha A. Derthick. — 3rd ed.
Includes bibliographical references and index.
ISBN 978-1-4522-0223-5 (pbk.: alk. paper)
1. Tobacco—Law and legislation—United States. 2. Tobacco—Government policy—United States. 3. Products liability—Tobacco—United States—History. I. Title.
This book has two origins—one intellectual, the other practical. Intellectually, it began with my teaching an undergraduate course in public policy. I was looking for interesting case-study material and thought I detected some in the tobacco wars. I had developed the practice of staging mock hearings on a major policy issue. Most of the time, I used the future of Social Security, but tobacco control also had possibilities. The one mock hearing that we held in Government 438 at the University of Virginia went very well, with numerous engaging roles for the students to play. Because it was Virginia, I was not surprised to have one student, the granddaughter of tobacco farmers, defend the farmers' interests. It was more surprising to have some of the best students in the class play effectively the roles of tobacco company executives.
To the best of my recollection, what first caught my attention was a story in the Washington Post saying that the Tobacco Institute had been abolished in response to action by the state governments. Whoa, I said to myself. When did the governments of the United States get the right to abolish lobbies? What country am I living in? Granted, tobacco is bad for smokers' health; even so, our constitutional traditions of free speech and limited government were not founded just for the protection of benign and popular causes.
Beyond that, as a professor it struck me that tobacco was a rich story, engaging questions of constitutionalism, separation of powers, and federalism; the roles of bureaucracy, interest groups, and the legal profession; issue and agenda development; elite versus mass opinion; the influence of money in politics and of moralism on public policy; and government regulation versus individual responsibility. Almost any question a political scientist might want to raise with undergraduates in introductory courses could be teased out of the tobacco wars. I have tried to capture this richness while organizing the story around the central theme of legislation versus litigation as a mode of policymaking. I like that, too, because I think there is no more important question for students of American institutions and policy processes to examine today.
After a brief introduction (chapter 1), the book opens by recounting the history of legislation and tort litigation under what I call a [Page x]regime of “ordinary politics.” Explained in chapters 2 and 3, this regime prevailed between 1964, when a report of an advisory committee to the U.S. surgeon general initiated the modern campaign against tobacco use, and 1993. I then describe in chapters 4 through 6 the dramatic changes that took place starting in 1994, when Commissioner David A. Kessler of the Food and Drug Administration (FDA) opened a drive to reinterpret federal law and subject the cigarette industry to FDA regulation. Later that year, the attorneys general of the state governments, led by Mississippi's Mike Moore, began filing lawsuits against the industry to recover Medicaid costs that they alleged were attributable to smoking. I analyze the fate of these initiatives in chapters 7 and 8. Kessler's attempt at regulation was defeated in the courts. The suits filed by the attorneys general led first (in June 1997) to an attempt at settlement that failed when Congress declined to incorporate it in legislation, but subsequently (in November 1998) culminated in a “master settlement agreement” that is summarized in chapter 9. The book closes with an analysis of the consequences of the settlement, chapter 10, which I updated in 2004 and again in 2010; a new chapter 11, which gives an account of Congress's return to legislation in 2009 with passage of a law regulating tobacco products; and a concluding chapter 12, which is not new but which has been shortened and sharpened in light of events since 2005.
Although the book is about how policy is made rather than what tobacco policy ought to be, how a reader reacts to this long and complicated story is likely to depend on what he or she believes both about tobacco use and about the relation between government and its citizens. How far ought government to go in protecting citizens against their vices, and how far in regulating manufacturers of harmful products? At one extreme, governments in the United States might do nothing about tobacco, which historically was a staple crop of the South, helping to sustain the economy of a desperately poor region. At the other extreme, they could prohibit its growth, manufacture and use. After the danger of tobacco use was scientifically established and officially publicized in the mid-sixties, governments in the United States generally sought to discourage tobacco consumption by occupying a middle ground, relying on taxation, warning labels and other public admonitions, limitations on place of use, prohibition of radio and TV advertising, and prohibition of sales to minors, a prohibition that until the 1990s was not well enforced. Until recently, Congress has implicitly preferred inaction to action.
Critics of tobacco are critics also of tobacco politics, and regard the historic path of compromise as proof of the excessive power of cigarette [Page xi]producers in legislative politics. Many Americans appear to be skeptical of legislatures' ability to do their work well, partly because members receive large campaign contributions from corporate donors such as cigarette manufacturers. No one could claim that elected legislatures are ideal instruments of policymaking. The question raised here is how they compare with litigation-centered alternatives to which Americans have an increasing propensity to resort. Many readers will receive my findings skeptically. They should perhaps take note of the fact that among all of the industries in the United States, including finance and real estate, pharmaceuticals and tobacco, the largest contributors to election campaigns are lawyers and law firms. Even if not convinced by my conclusions, I promise that the reader who stays with the story will get a penetrating look at politics and government as they are practiced in the United States today.Acknowledgments
As a practical matter, the book began when Charisse M. Kiino, an acquisitions editor for CQ Press, knocked on my office door and asked what CQ should be publishing. I advised a case study on tobacco politics, and she replied by suggesting that I do it. I said I did not know enough about the subject, was not sure whether at retirement age I could muster the passion needed for another book, had a garden to tend, had other academic commitments, and so on. She coaxed me, as did various colleagues thirty or more years younger than I who insisted that of course I could summon the energy for a book, and had confidence that it would be worth reading. Foremost among these were Gerard Alexander, Gareth Davies, John Dinan, Eric Patashnik, and Steven Teles.
The staff of CQ Press has throughout been efficient, supportive, and altogether a pleasure to work with. I am much indebted to Ms. Kiino, who was unfazed when reviews of an early prospectus confirmed my claim that I did not know much about the subject, and whose editorial advice at critical moments improved the result. For more than a decade, she has remained steadfast in support of this work. I also thank Christopher M. Karlsten, who edited the completed manuscript for the first edition; Talia Greenberg, who ably substituted for him when he was on vacation; Katharine Miller, who edited the manuscript for the second edition in 2004; and Joan Gossett, who was in charge of producing it. For the third edition, Sarah Fell, who was in charge of production, and Shannon Kelly, as editor, maintained the high professional standards and good nature of their predecessors.
[Page xii]CQ engaged several reviewers of the prospectus and several more of the first draft of the manuscript, including Juliet Gainsborough of the University of Miami; Evan Gerstmann of Loyola Marymount University; Donald P. Haider-Markel of the University of Kansas; Trey Hood of the University of Georgia; Michael J. Licari of the University of Northern Iowa; Lynn Mather of the University of Buffalo Law School, SUNY; Raymond Tatalovich of Loyola University Chicago; and Stephen Wirls of Rhodes College. Collectively they were responsible for many improvements and also for alerting me to just how controversial the subject of tobacco is. I am grateful also to Mary Graham, who read the first draft; Richard Drew, who read the final one; and Shep Melnick, who read both. Each provided helpful suggestions for the first edition.
I was helped also by the opportunity to present the emerging argument in seminars at the Miller Center of Public Affairs of the University of Virginia, Harvard University, and Claremont McKenna College. For these invitations, I thank, Kenneth W. Thompson; Shep Melnick, the late Delba Winthrop, and Harvey Mansfield; and Charles Kesler, respectively. It was Professor Kesler, searching for a title for my Claremont talk, who suggested “Up in Smoke.” At the Miller Center and beyond, Professor Matthew Holden asked pointed and helpful questions, particularly about the role of the attorneys general. At Harvard, several members of the seminar challenged me, including Tom Burke, Robert Faulkner, Meg Jacobs, Morton Keller, Kim Kosman, Marc Landy, Paul Pierson, and Theda Skocpol. At Claremont, faculty members Joseph Bessette and Peter Skerry, as well as Professor Kesler, did the same. I appreciate their encouragement and interest. As I was nearing the end of the manuscript for the first edition, I had the opportunity to present seminars at Cambridge University and Oxford University, thanks to Anthony J. Badger, Gareth Davies, and Daniel Walker Howe. Discussion in those forums yielded several improvements.
In seeking to understand the economics and politics of growing tobacco, subjects that were treated more fully in the second edition, I benefited from the excellent Web sites of the Economic Research Service (ERS) of the U.S. Department of Agriculture, Professor Will Snell of the University of Kentucky, and Professor A. Blake Brown of North Carolina State University. In addition, Thomas C. Capehart Jr., an economist at the ERS, kindly answered many questions that I addressed to him by e-mail.
Professor Joseph White of Case Western Reserve University supplied a large number of detailed comments on the first edition, for which I thank him. Richard J. Bonnie of the University of Virginia Law School, the late Judy Wilkenfeld and Eric Lindblom of the Campaign [Page xiii]for Tobacco-Free Kids, Michael S. Greve of the American Enterprise Institute, Christine Hall and Hans Bader of the Competitive Enterprise Institute, and Margaret A. Little all contributed helpfully to my research for the second edition. Ms. Hall and Mr. Bader continued to give assistance as the third edition was prepared.
When I proposed to CQ Press a third edition, Ms. Kiino solicited reactions anonymously from several users of the book, who responded with warm endorsements, for which I thank them even if I don't know who they are. This edition benefited from the opportunity to present a paper at the 32nd annual research conference of the Association for Public Policy Analysis and Management, held in Boston in the fall of 2010. I am indebted to Eric Patashnik for that opportunity and to Rogan Kersh for comments and encouragement on that occasion. As always, I received a great deal of useful advice from John Dinan. Shep Melnick, making a repeat appearance in these acknowledgements, and Sidney Milkis, appearing for the first time, also helped.
Some of the analysis has been published separately in articles, including “Federalism and the Politics of Tobacco,” in Publius: The Journal of Federalism (winter 2001); “The Lawyers Did It: The Cigarette Manufacturers' Policy Toward Smoking and Health,” in Legality and Community: On the Intellectual Legacy of Philip Selznick (Berkeley Public Policy Press and Rowman and Littlefield, 2002), edited by Robert A. Kagan, Martin Krygier, and Kenneth Winston; a review of David A. Kessler's book, A Question of Intent, in the Claremont Review of Books (spring 2001); and “Lawyers' Ethics in Decline,” in Carole L. Jurkiewicz, ed., The Foundations of Organizational Evil (forthcoming from M. E. Sharpe).
I thank Vince Willmore of the National Center for Tobacco-Free Kids for permission to reproduce an advertisement. I owe a special debt to the staff of the Alderman Library of the University of Virginia, which gives superb service to the faculty, including, I now know, retired faculty. The library staff was prompt and generous with help in tracking down sources, in print and on the Web. Kent Olson, reference librarian at the law school, was also helpful.
To a degree unprecedented in my career, I have written this book by synthesizing secondary and primary sources available through libraries and Web databases. I barely left Charlottesville—indeed, barely left my house. I am a bit uneasy about that. No doubt there are points at which the book would be better had I done interviews, but the source material from books, newspapers, and Web sources was so abundant and so readily available that I settled for relying on them. I relied in particular on the news stories of Gordon Fairclough, Milo [Page xiv]Geyelin, Vanessa O'Connell, and David Kesmodel of the Wall Street Journal, and those of Barry Meier and Duff Wilson of the New York Times. My debt to them will be evident from the citations. I am, of course, responsible for the use I made of these sources.Charlottesville, Virginia, April 2011,
Chronology of Cigarette Regulation in the United States[Page 234]
January 1964—An advisory committee to the U.S. surgeon general issues a report on the link between smoking and health. It says that “cigarette smoking is a health hazard of sufficient importance to warrant appropriate remedial action.”
July 1965—Congress enacts the Federal Cigarette Labeling and Advertising Act (P.L. 89–92, 79 Stat. 282), which requires that cigarette packs bear this warning: “Caution: Cigarette Smoking May Be Hazardous to Your Health.” The act preempts further regulation of cigarette labeling or advertising by federal agencies or state governments and requires an annual report from the secretary of Health, Education, and Welfare (HEW) on the health consequences of smoking, along with “such recommendations for legislation as he may deem appropriate.” The law also requires an annual report from the Federal Trade Commission (FTC) on the effectiveness of cigarette labeling and the industry's advertising and promotion practices, along with legislative recommendations.
April 1970—The Public Health Cigarette Smoking Act of 1969 (P.L. 91–222, 84 Stat. 87) becomes law. It requires the following language on cigarette packs: “Warning: The Surgeon General Has Determined That Cigarette Smoking Is Dangerous to Your Health.” This message is to be located in a “conspicuous place” and to appear in “conspicuous and legible type.” The law preempts any other government or government agency from requiring any other statement on smoking and health on cigarette packs, and it provides that “no requirement or prohibition based on smoking and health shall be imposed under State law with respect to the advertising or promotion of any cigarettes the packages of which are labeled in conformity with the provisions of this Act.” The act prohibits cigarette advertising on radio and TV after January 1, 1971, and bars the FTC from acting on a pending rule for cigarette advertising [Page 235]prior to July 1, 1971. It also instructs the FTC to give Congress six months' notice of trade regulations dealing with cigarette advertising “in order that the Congress may act if it so desires.” It continues the requirement of annual reports on smoking and health by the secretary of HEW and on cigarette advertising and promotion by the FTC.
April 1977—The Berkeley, California, city council passes an ordinance restricting smoking in public indoor spaces and requiring separate sections for smokers and nonsmokers in restaurants.
1982—The annual report of the surgeon general identifies cigarette smoking as the “chief preventable cause of death.”
June 1983—San Francisco adopts a clean indoor air ordinance, making that city the twenty-second locality in California—and the first big American city—to do so. Such ordinances spread in the 1980s and 1990s in California and elsewhere, surging after the Environmental Protection Agency in 1990 tentatively calls environmental tobacco smoke a human carcinogen.
October 1984—Congress enacts the Comprehensive Smoking Education Act (P.L. 98–474, 98 Stat. 2200), which proclaims “a new strategy for making Americans more aware of any adverse health effects of smoking.” The act requires the secretary of Health and Human Services (HHS—formerly HEW) to carry out a program of smoking research, education, and information, including the compilation of state and local laws relating to the use and consumption of cigarettes. It also mandates the use of four different warnings on cigarette packs and in advertisements, including billboards. These warnings are to be rotated quarterly, and each is to be preceded by the phrase “SURGEON GENERAL's WARNING.” The warnings are “Smoking Causes Lung Cancer, Heart Disease, Emphysema, And May Complicate Pregnancy;” “Quitting Smoking Now Greatly Reduces Serious Risks to Your Health;” “Smoking By Pregnant Women May Result in Fetal Injury, Premature Birth, And Low Birth Weight;” and “Cigarette Smoke Contains Carbon Monoxide.” The law also requires cigarette manufacturers annually to provide the secretary with a list of ingredients added to tobacco in the manufacture of cigarettes, and removes restraints on the FTC contained in previous laws. Opponents of tobacco regard this act as their first victory in Congress.
October 1987—The Centers for Disease Control and Prevention (CDC) publishes an estimate that 315,120 deaths resulted from cigarette [Page 236]smoking in 1984. In 1997 the CDC revises this estimate to 437,000 deaths per year as an average for 1990–1994. Thereafter, 430,000 deaths per year becomes a commonly used figure.
December 1987—Congress includes in a transportation appropriations bill a ban on smoking on domestic airline flights of two hours or less, to take effect in 1988. This ban covers an estimated 80 percent of all domestic flights.
November 1988—California voters approve Proposition 99, which increases the tobacco excise tax from 10 cents to 35 cents a pack and devotes 20 percent of the resulting revenues to a tobacco control program. By the late 1990s, according to the federal Office on Smoking and Health, Maine, Oregon, Massachusetts, and Arizona join California in establishing well-funded state tobacco control programs through earmarked increases in their excise taxes on tobacco.
November 1989—In a transportation appropriations bill, Congress enacts a permanent ban on smoking on almost all domestic commercial airline flights, to take effect in 1990. The only exceptions are for flights beginning or ending in Alaska or Hawaii and lasting more than six hours.
February 1990—A national status report on smoking and health, issued by the federal Office on Smoking and Health, reports that all but seven states impose limits on smoking in public places.
July 1992—Congress enacts the Synar Amendment (a provision of P.L. 102–321, 106 Stat. 394), which requires as a condition of federal grants for control of alcohol and substance abuse that state governments have a law prohibiting sale of tobacco products to persons under eighteen years of age. States are required to enforce such laws “in a manner that can reasonably be expected to reduce the extent to which tobacco products are available to individuals under the age of 18,” to “annually conduct random, unannounced inspections to ensure compliance with the law,” and to make an annual report to the secretary of HHS regarding progress and enforcement strategies.
February 1994—In a letter to the chairman of the Coalition on Smoking OR Health, Commissioner David A. Kessler of the Food and Drug Administration (FDA) announces an intention to regulate cigarettes because they contain the drug nicotine, which cigarette manufacturers design to satisfy an addiction. This stance breaks with the position of [Page 237]previous FDA commissioners, who interpreted the Food, Drug, and Cosmetic Act (FDCA) to mean that the FDA lacked authority to regulate cigarettes.
March–June 1994—Hearings of the Subcommittee on Health and the Environment of the House Committee on Energy and Commerce, with Henry Waxman as chairman, provide a platform for Commissioner Kessler to attack nicotine as an addictive drug and cigarette companies for manipulating the nicotine content of cigarettes. Cigarette company executives testify that nicotine is not addictive in a televised event that is a high point in the propaganda war against tobacco.
May 1994—Mike Moore, attorney general of Mississippi, sues the major cigarette manufacturers to recover the costs of Medicaid that the state claims are attributable to smoking. Dozens of other states also sue, the largest single group in 1997 as it becomes clear that Moore's suit will end in a financially rewarding settlement.
August 1995—The FDA publishes proposed regulations designed to discourage youth consumption of tobacco. Among other things, they prohibit sales of cigarettes to persons under eighteen; require vendors of cigarettes to verify the age of purchasers with a photo ID; prohibit vending machine sales or self-service displays except where persons under eighteen are not permitted; ban the use of billboards and advertising posters near schools and public playgrounds; limit advertising and labeling to a black-and-white, text-only format; prohibit the sale and distribution of promotional items such as hats and T-shirts bearing cigarette brand names; and prohibit sponsorship of sporting and musical events and of sports teams using brand names.
August 1996—FDA regulations are published in final form, to take effect for the most part a year later. However, the prohibition on sales to persons under eighteen and the requirement of a photo ID are to take effect in February 1997. The regulations are designed to preempt state laws governing age of purchase.
April 1997—In response to a suit filed by the industry, a federal district judge in North Carolina rules that Congress has not withheld authority to regulate cigarettes from the FDA. However, he also rules that the FDCA does not authorize the FDA to regulate the promotion and advertisement of tobacco products. Both sides appeal. Regulations already implemented, which govern age of purchase and requirement of a photo ID, are allowed to remain in effect pending appeal.
[Page 238]June 1997—The state attorneys general and the cigarette manufacturers announce a comprehensive settlement of the states' lawsuits. The companies agree to pay $368.5 billion over twenty-five years and submit to FDA regulation and many onerous restrictions on their marketing and advertising. They are to be relieved of class-action suits and punitive damage claims for past misconduct, and their payment of judgments or settlements in lawsuits will be subject to an annual cap. This agreement is contingent on enactment by Congress as well as consent decrees, but Congress does not approve it. In 1998 the Senate considers but fails to enact a substitute—called the McCain bill for its sponsor, Sen. John McCain of Arizona—that is far more punitive to the industry.
June 1997—Mississippi and the cigarette industry settle the state attorney general's lawsuit, with an industry agreement to pay the state more than $3 billion. Individual settlements follow also in Florida (August 1997, for $11.3 billion); Texas (January 1998, for $15.3 billion); and Minnesota (May 1998, for $6.1 billion, along with $469 million for Blue Cross–Blue Shield of Minnesota).
August 1998—Reversing the judgment of the district court, the U.S. Court of Appeals for the Fourth Circuit rules that the FDA lacks jurisdiction to regulate tobacco products and that all of the FDA's regulations of August 1996 are invalid. However, in response to requests from the government, the circuit court issues stays that permit the FDA to continue enforcing its age-of-purchase and photo ID rules pending appeal to the Supreme Court.
November 1998—The major cigarette manufacturers and the attorneys general of the forty-six states that have not previously settled individually with the industry conclude a “master settlement agreement” that is a much-modified version of the settlement of June 1997. This agreement will cost the industry an estimated $206 billion over twenty-five years; drive up the cost of cigarettes; and restrict the industry's marketing and advertising (for example, by eliminating billboards, transit ads, and the use of cartoon characters, and by limiting the number of event sponsorships). The industry receives no protection from liability in private lawsuits or from class actions. This agreement does not provide for FDA regulation and does not depend on congressional enactment. State legislatures and courts approve it, and it withstands legal challenges. States begin receiving money in November 1999.
January 1999—The outgoing attorney general of Massachusetts issues regulations that he says are designed to “close holes” in the Master [Page 239]Settlement Agreement. Among other things, they prohibit “outdoor advertising, including advertising in enclosed stadiums and advertising from within a retail establishment that is directed toward or visible from the outside of the establishment, in any location that is within a 1,000 foot radius of any public playground, playground area in a public park, elementary school or secondary school,” as well as “point-of-sale advertising … any portion of which is placed lower than five feet from the floor of any retail establishment which is located within a one thousand foot radius.… The Massachusetts rules are for the most part upheld by federal district and circuit courts, but the industry in January 2001 secures a grant of certiorari from the Supreme Court. Circuit courts around the country have divided on the question of whether federal law preempts advertising regulations enacted by state and local governments.
September 1999—The U.S. Department of Justice, following the example of state governments and instructions from the Clinton White House, files a civil lawsuit against the largest cigarette manufacturers, charging that they have conspired since the 1950s to defraud the public and conceal information about the effects of smoking. Relying on three statutes—the Medical Care Recovery Act, the Medicare Secondary Payer Act, and the Racketeer Influenced and Corrupt Organizations (RICO) Act—the government seeks to recover billions of dollars in medical care costs. A year later, a federal judge dismisses the counts brought under the first two statutes but allows the case to proceed under RICO.
March 2000—By a 5 to 4 majority, the Supreme Court rules that Congress “has clearly precluded the FDA from asserting jurisdiction to regulate tobacco products. Such authority is inconsistent with the intent that Congress has expressed in the [Food, Drug and Cosmetic Act's] overall regulatory scheme and in the tobacco-specific legislation that it has enacted subsequent to the FDCA.” The FDA's regulatory regime ends.
June 2001—The Supreme Court rules in Lorillard Tobacco Co. v. Reilly, Attorney General of Massachusetts, that the Federal Cigarette Labeling and Advertising Act, as enacted in 1965 and as amended in 1969, preempts Massachusetts's regulations governing outdoor and point-of-sale cigarette advertising. This decision appears likely to invalidate the advertising regulations of other states and their local subdivisions but does not affect advertising restrictions contained in the Master Settlement Agreement.
[Page 240]2001—Philip Morris begins to seek FDA regulation of cigarettes, improving prospects of action by Congress.
2002–2003—New York City enacts a strict antismoking ordinance that applies to all indoor workplaces; restaurants, no matter how small; and bars. The New York legislature follows with a similar statewide law. Antismoking ordinances spread even in Tobacco Country. As of 2003, all fifty states and the District of Columbia restrict smoking in public places, variously defined. California, Delaware, New York, Maine, and Connecticut prohibit smoking in virtually all public places and enclosed places of employment. Forty-five states and the District of Columbia restrict smoking in government workplaces, and twenty-six states and the District of Columbia restrict smoking in private workplaces.
July 2004—The Senate approves FDA regulation of tobacco.
August 2006—U. S. District Judge Gladys Kessler finds the major cigarette companies guilty of violating the civil provisions of RICO. In an opinion of nearly 1,700 pages, she writes that they have sold “a highly addictive product which causes diseases that lead to a staggering number of deaths per year, an immeasurable amount of human suffering and economic loss, and a profound burden on our national health care system.” The ruling asserts that although the cigarette companies had knowledge of the harm of their products, they denied the facts to the public. An appellate court upholds her verdict in 2009, and the Supreme Court in 2010 declines review. The financial impact of the decision is limited by a federal appellate court ruling of 2005 that the RICO statute is forward-looking only and cannot be used to compel disgorgement of past profits.
July 2008—The House of Representatives enacts tobacco regulation.
February 2009—The General Assembly of Virginia, a state that is home to Philip Morris, the country's leading cigarette manufacturer, and that has a long and proud tradition of producing tobacco, approves a ban on smoking in most of its bars and restaurants, to take effect in December.
June 2009—President Barack Obama signs the Family Smoking Prevention and Tobacco Control Act (P. L. 111–31, 123 Stat. 1776), which gives the Food and Drug Administration broad authority to regulate both the manufacture and marketing of tobacco products, following passage by wide margins in both the House and Senate. The FDA is authorized to require changes in the design and characteristics of current and future [Page 241]tobacco products, including the reduction or elimination of harmful ingredients and additives, although it cannot reduce nicotine yields to zero. Manufacturers must obtain FDA approval to market a new tobacco product unless the FDA determines that it is substantially equivalent to, or a minor modification of, a product already on the market. The law prohibits use of terms such as “light,” “mild,” and “low” that might be taken to imply safety, and requires bigger, graphic warnings on both sides of cigarette packs and in advertising.
January 2010—A ban on smoking in bars and restaurants goes into effect in North Carolina, which produces nearly half of the tobacco grown in the United States.
February 2011—The New York City Council, following a recommendation of Mayor Michael R. Bloomberg, votes to extend a prohibition on smoking to all 1,700 of the city's parks and to 14 miles of public beaches.[Page 242]