State of New York, City of New York v. United Parcel Service (U.S. Ct. of Appeals for the 2nd Circuit) (2018)

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Status: Open
The litigation is ongoing.

Legal Issue

Whether the District Court’s civil penalty against UPS for illegally transporting hundreds of thousands of cartons of untaxed cigarettes from Indian reservation retailers to non-tribal members in the State of New York is constitutional, well within the court’s discretion, and consistent with the harm to public health caused by UPS’s violations.

Overview

New York State has one of the highest state tobacco taxes in the U.S.  Understanding the devastating effect of cigarette tax evasion on public health, the New York State Attorney General’s Office entered into agreements with major carriers of goods, including United Parcel Service, to ensure that they would transport cigarettes only to those licensed or registered in accordance with law to deal in tobacco products, and not to consumers. The State and New York City also worked in support of federal legislation, the Prevent All Cigarette Trafficking (“PACT”) Act, which, among other things, prohibits the shipment of cigarettes by the U.S. Postal Service.  Despite these agreements and legislation, from 2005 until 2015, UPS violated its 2005 agreement with the AG’s Office and several relevant statutes by illegally transporting hundreds of thousands of cartons of untaxed cigarettes from Indian reservation retailers to non-tribal members in the State of New York.

The New York Attorney General sued, claiming UPS cost the state millions of dollars in tax revenue by delivering cigarettes to private residences and unauthorized sellers. In 2017, a federal judge ordered United Parcel Service, Inc. to pay nearly $247 million in damages and penalties for "illegally shipping" large volumes of untaxed cigarettes in New York State and City. UPS appealed.

On February 28, 2018, the Public Health Law Center and five other public health partners filed an amicus brief at the 2nd Circuit U.S. Court of Appeals in support of the New York district court’s assessment of penalties against UPS. Our brief argued that collecting cigarette taxes is the most effective way to reduce smoking, especially among youth; that the amount of civil penalties awarded is well within the district court’s discretion and consistent with the harm to public health caused by UPS’s violations; and that the district court award was well below any 8th Amendment limitations. Joining the brief were the Campaign for Tobacco-free Kids; American Cancer Society Cancer Action Network; American Lung Association; New York State American Academy of Pediatrics, Chapters 2 & 3; Truth Initiative Foundation; and the Public Health Law Center.

Amicus Brief PDF

Amicus Curiae Briefs

Amicus briefs are legal documents filed in appellate court cases by non-litigants with a strong interest in the subject matter. The briefs advise the court of relevant, additional information or arguments that the court might wish to consider. Briefs can also focus the court’s attention on the implications of a potential holding on an industry, group, or jurisdiction not represented by the parties. The court has discretion to grant or deny permission of parties to file briefs as amici curiae. A well-written amicus brief can have a significant impact on judicial decision-making. Cases are occasionally decided on grounds suggested by an amicus, decisions may rely on information or factual analysis provided only by an amicus, and holdings may be narrower or broader than parties have urged because of a persuasive amicus brief.

Drafting amicus briefs is a large undertaking, which requires weeks of work negotiating involvement, coordinating potential participants, researching issues, recruiting authors, and editing drafts.

Function and Role of Amicus Briefs in Public Health Litigation

The Public Health Law Center and the Tobacco Control Legal Consortium play a unique role supporting public health policy by preparing amicus curiae, or friend of the court, briefs in legal cases of national importance related to public health.

We prepared and filed or joined in several amicus briefs in key cases before the appellate courts of many states, as well as the U.S. Supreme Court, U.S. Courts of Appeals, and the U.S. District Court for the District of Columbia. For example, these briefs have supported local authority to enact smoke-free ordinances or to regulate tobacco distribution, and rules requiring restaurants to provide warnings on menus about sodium content. Among the national organizations joining our briefs have been the American Cancer Society Cancer Action Network, the American Heart Association, the American Lung Association, the American Medical Association, the National Association of County and City Health Officials, the National Association of Local Boards of Health, Americans for Nonsmokers’ Rights, and the Campaign for Tobacco-free Kids.  Many state associations have joined our briefs as well, such as the Washington State Medical Association, the Kentucky Medical Association, the Montana Hospital Association, the Montana Public Health Association, the League of California Cities, and the California State Association of Counties.

Case Documents & Information

Case Documents