Tobacco Control Litigation
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Since the mid-fifties and for a surprisingly long time thereafter, despite growing evidence that commercial tobacco products were directly responsible for the death and disability of millions of people each year, few lawsuits against tobacco manufacturers were successful. The first wave of cases, spanning thirty years, were filed on behalf of individual smokers and their families on charges of theories of negligence, breach of warranty and misrepresentation. The industry aggressively rebutted these claims, denying casual links between smoking and disease, and creating a smokescreen scientific “controversy” about the medical evidence. Of the few cases that went to trial, none were successful.
The second wave of cases, in the eighties and early nineties, were filed under theories of failure to warn and strict liability. The industry stonewalled, withheld information, suppressed and destroyed scientific research and, according to one 1972 memorandum, employed a strategy “of creating doubt about the health charge without actually denying it; and advocating the public’s right to smoke without actually urging them to take up the practice.” With one exception – the case of Rose Cipollone a New Jersey smoker who died of cancer at 53, where the plaintiff’s estate won a jury verdict of $400,000 (later overturned) – this second wave of tobacco cases was largely unsuccessful.
The tide turned with the third, and most recent, wave of cases, starting in 1994. The most significant of these cases were filed by state attorneys general against the tobacco industry for deceptive and fraudulent marketing, targeting children, and conspiracy to conceal the health effects of smoking. The states sought reimbursement of public money spent for the costs of tobacco-related illnesses. In 1998, these cases resulted in the largest legal settlements in history – individual settlements with Florida, Minnesota, Mississippi and Texas ($40 billion), and a Master Settlement Agreement with the remaining forty-six states ($206 billion over twenty-five years). As a result of the Minnesota settlement, and others, the tobacco industry was forced to disclose at least 35 million pages of tobacco industry documents. These documents reveal the extent to which the industry manipulated the chemicals in their products, deceptively marketed these products, and concealed the serious health effects of smoking.
A few years later, the federal government sued cigarette manufacturers in a massive racketeering case, the United States v. Philip Morris. After six years of litigation, nine months of trial, and hundreds of depositions – the government prevailed. On August 17, 2006, U.S. District Court Judge Gladys Kessler, in a 1700-page Opinion chronicling decades of deception, ruled that the Government had proven its case and that the tobacco company defendants violated the Racketeer Influenced Corrupt Organizations Act (RICO).
In recent years, tobacco plaintiffs have turned to class actions with mixed results. Individual smokers have continued to sue the industry, and occasionally win substantial verdicts. Also, local and state governments have often faced challenges to smoke-free laws by the hospitality industry, including bars and restaurants, and other parties, on grounds ranging from equal protection and regulatory takings to preemption. The vast majority of these smoke-free challenges are unsuccessful.