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Cigarettes are the leading cause of residential fire fatalities in the United States, resulting in hundreds of millions of dollars in annual economic loss, including property damage, health care costs, and lost productivity. The tobacco industry has long been aware of the death rate due to cigarette fires, and has conducted research for years on cigarettes that would stop burning when not actively smoked. Still, for a variety of reasons including alleged concern over consumer acceptability, the industry has not widely introduced “fire safe” cigarettes to the market.
A majority of states, and a growing number of countries, now mandate that cigarette manufacturers regulate their products to meet an “ignition propensity standard,” to ensure that they have a low probability of igniting and will self-extinguish when left unattended. These cigarettes are often referred to as “fire safe” – a misnomer, since the ignition propensity of these cigarettes is reduced, rather than eliminated. They are also described as “fire safer,” “reduced ignition propensity (RIP),” and “self-extinguishing” cigarettes.
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Plaintiffs suing tobacco manufacturers over cigarette-caused fires have largely based their claims on product liability theories. A product liability claim holds a manufacturer responsible when its product performs in a manner unreasonably dangerous to a consumer.
In product liability cases, a consumer expectations test is often used to determine whether a product is negligently manufactured or a product warning is defective. Plaintiffs in cigarette fire cases need to prove a non-fire safe cigarette is defective beyond what would be expected by a reasonable consumer. Proving that a reasonable person would not expect an unattended cigarette to cause a fire makes the consumer expectations test difficult to meet.
Another test used in product liability cases is a risk-utility test, traditionally used to assess whether a product has design defects. To determine whether a non-fire safe cigarette is defective under this test, several factors are considered:
- Usefulness and desirability of the product
- Likelihood of injury and probable seriousness
- Availability of safer products
- Ability to eliminate danger without seriously impairing usefulness of product
- Obviousness of danger
- Avoidability of danger
In recent years, as more manufacturers have produced fire-safe cigarettes, courts have moved toward using the risk-utility test in determining whether non-fire safe cigarettes are defective in design. The risk-utility test only allows manufacturers to escape liability if there is utility in their product not being as safe as it can be.
- National Fire Protection Association, John R. Hall, Jr. "Smoking-Material Fire Problem" report (PDF, 256 KB) (Nov. 2007). Statistical analysis of U.S. fires started by “smoking materials” (cigarettes).
- M Gunja et al., The Case for Fire Safe Cigarettes Made Through Industry Documents, 11 Tobacco Control 346 (2002). Analysis of extensive tobacco industry research over the past 25 years toward development of a fire safe cigarette.
- Hillel R. Alpert et al., The Effect of the New York State Cigarette Fire Safety Standard on Ignition Propensity, Smoke Toxicity and the Consumer Market, 14 Tobacco Control 321 (2005). A Harvard School of Public Health report that shows New York experienced no decline in consumer purchases of cigarettes when “fire-safe” cigarettes were introduced in the market.
This sampling of “fire-safe” cigarette cases demonstrates claims raised by plaintiffs, and court outcomes.
- Moore/Shipman, District Ct., Johnson County, Texas, 18th Judicial District (Cause No. 262-94) (2003). Historic settlement resulting from individual personal injury suit. Plaintiff-child was severely burned and left disabled after her mother left a cigarette on a car seat and the child unattended in the car. Plaintiffs claimed defective design, alleging that the defendant Philip Morris had the technical knowledge for years to produce a “fire safe” cigarette that would have prevented the accident without impairing the product’s utility. In a settlement prior to the verdict, Philip Morris paid $2 million to plaintiff-child.
- Sacks v. Philip Morris, 1996 WL780311 (D. Md. 1996). Plaintiffs claimed the cigarettes were defectively designed, the tobacco industry had a duty to warn consumers of the fire risk posed by their products, and manufacturers had breached an implied warranty with consumers by failing to incorporate a “reasonable measure of safety” in their cigarette designs. Court found no liability for negligence in design or for failure to warn “where the defect is open and obvious to the consumer.” Court also rejected implied warranty claim, holding the warranty “cannot be extended so broadly as to protect against every instance of the purchaser’s careless use of the product.”
- Kearney v. Philip Morris, 916 F. Supp. 61 (D. Mass. 1996). In this wrongful death suit, the plaintiff alleged that defective design of the defendant's cigarettes caused a fire in the home, killing a mother and three children. The plaintiff also claimed negligence, breach of warranty, and violations of Massachusetts state law. The Massachusetts district court refused to expand product liability jurisprudence to “injuries resulting from common, everyday products whose obvious dangers are known to be associated with use of the product.”
- Griesenbeck v. American Tobacco Co., 897 F. Supp. 815 (D. N.J. 1995). Plaintiff’s parents and brother were killed in a cigarette-caused fire. Plaintiff claimed that manufacturer had duty to warn of dangers of smoking while sitting on upholstery while smoking, and that cigarette was defectively designed. New Jersey district court rejected plaintiff’s claims under consumer expectations standard.
- Lamke v. Futorian, 709 P.2d 684 (Okla. 1985). First “fire-safe” cigarette case. Plaintiff, injured when a cigarette discarded on a sofa started a fire, sued the sofa manufacturer and cigarette company, alleging that defects in their products rendered them unreasonably dangerous, and caused her injuries. Case dismissed. Court found the plaintiff was unable to prove the cigarette was dangerous to a degree not contemplated by the ordinary consumer.
U.S. interest in “fire-safe” cigarette legislation goes back to the 1920s. After years of unsuccessful efforts to pass a federal “fire-safe” cigarette law, advocates turned to the states, forming the Coalition for Fire-Safe Cigarettes and enlisting the aid of firefighters and local officials. In 2004, New York became the first state to enact “fire-safe” cigarettes. Since then, many states have adopted New York’s Fire Safety Standards for Cigarettes (FSSC), including the three most populous – California, Texas, and New York – and several countries, including Canada.
- New York’s Fire Safety Standards for Cigarettes. New York law that establishes fire safety standards for cigarettes to limit fire risks.
- Model fire-safe cigarette legislation. To maintain regulatory uniformity, several states and countries use the “model” fire-safe cigarette (FSC) regulatory bill based on the New York FSC law. The model legislation is called the “Fire Safety Standard and Firefighter Protection Act.”
- Latest U.S. fire-safe cigarette legislation. The Coalition for Fire-Safe Cigarettes monitors U.S. and international fire-safe policies.
- Latest international legislation (e.g., Canada).
- Coalition for Fire-Safe Cigarettes. National coalition of fire service members, consumers and disability rights advocates, medical and public health practitioners, coordinated by the National Fire Protection Association, committed to saving lives and preventing injuries by reducing the threat of cigarette-ignited fires.
- M. Gunja, Fire Safe Cigarettes, 40 Harv. J. on Legis. 559 (2003). Overview of the history of fire-safe cigarette legislation.