Whether the Panel’s preemption analysis accurately interpreted Congressional intent when it omitted consideration of the Family Smoking Prevention and Tobacco Control Act’s preservation and savings clauses, leading to the conclusion that any state regulation banning sales of tobacco product is subject to implied preemption.
Graham v. R.J. Reyolds is an Engle progeny case, where the plaintiff is a member of a now decertified class action against the tobacco industry for injuries suffered because of the health effects of smoking. An appeals court panel of three federal judges concluded that the plaintiff Graham cannot base his claims on the original Engle jury findings that all cigarettes are defective and all cigarette manufacturers are negligent. The panel found that relying on these findings in individual law suits would require the tobacco industry to stop selling cigarettes in order to comply with state laws related to defective products and negligence. The panel said such a ban would conflict with Congress’s “clear purpose and objective of regulating – not banning – cigarettes, and thereby leaving to adult consumers the choice whether to smoke cigarettes or to abstain.” As a result, the panel ruled that Graham’s claims were federally preempted – a decision that could prevent state and local governments from regulating tobacco products and roll back current tobacco control measures.
On May 8, 2015, the Tobacco Control Legal Consortium and seven other national public health partners filed an amicus brief at the 11th Circuit Court of Appeals in support of en banc review of Graham v. R.J. Reynolds. After the petition for en banc review was granted, on May 20, 2016, the public health coalition again filed a brief in support of the plaintiff. Our briefs argued that contrary to the panel’s ruling, Congress clearly intended states to retain the power to prohibit tobacco sales and that the panel’s findings related to strict liability and preemption wrongly limit state and local regulatory powers to regulate cigarette sales. Joining the Consortium’s brief were the American Cancer Society Cancer Action Network, American Legacy Foundation, American Lung Association, Americans for Nonsmokers’ Rights, Campaign for Tobacco-free Kids, National African American Tobacco Prevention Network, and the National Association of County and City Health Officials.
On May 18, 2017, the 11th Circuit Court of Appeals ruled in favor of Faye Graham’s estate, affirming the lower court’s judgments against R.J. Reynolds and Philip Morris and ruling against the use of preemption as a defense in this personal injury tobacco litigation.