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PHAI Releases New Resources to Use Law to Fight Junk Food Marketing to Kids
Wednesday, September 21st, 2011
Food and beverage marketing targeting children is a major focus of the food and beverage industry because, as the Institute of Medicine’s report on the subject bluntly declared, “marketing works.”
Deceptive and unfair marketing to promote high-calorie low-nutrient foods and beverages affect parent-consumer food purchasing decisions and induce demand among children for products that contribute to obesity and overweight. Such marketing campaigns can run afoul of an array of legal authorities that provide consumer protection from such practices.
PHAI conducted extensive 50-state research examining the provisions of state consumer protection laws of the United States that prohibit unfair, deceptive or unconscionable sales and marketing campaigns. Depending on the state, these consumer protection laws may be used by stakeholders in child health, including parents, as well as state attorneys general to stop unfair or deceptive marketing and advertising of unhealthy food and beverage products linked to overweight and obesity in children and adolescents.
The research focuses on the legal limits of: (1) direct marketing to children and teens in an effort to get them to use their own spending money to purchase food products for themselves; and (2) “pester power” marketing that targets children in an effort to get them to persuade their parents into buying products for them. To make it easy to find and compare state consumer protection laws, we have created an interactive map linking to consumer protection law profiles of every state and the District of Columbia.
Key findings of our state consumer protection research also are summarized in a report and a legal issue brief:
- Major Findings from 50-State Survey of State Consumer Protection Law to Limit Junk Food Marketing to Children by Cara Wilking, JD and Mark Gottlieb, JD summarizes and contextualizes our research (pdf).
- Reining in Pester Power Food and Beverage Marketing by Cara Wilking, JD applies our research to food marketers who appeal to kids’ ability to nag adults to purchase unhealthy foods (pdf).
A clear understanding of consumer protection rights and the sources of their legal authority will provide guidance for policymakers and advocates for children’s health who seek to curb these practices without the need for new legislation and regulatory measures.
Click to vist our interactve consumer protection map
This research was supported by the Robert Wood Johnson Foundation’s Healthy Eating Research Program (#66968).
PHAI’s Wilking urges repeal of MA sales tax exemption for soda as first step in Boston Globe Letter to Editor
Friday, May 20th, 2011
In a May 18, 2011 Letter to the Editor published in the Boston Globe, PHAI Staff Attorney Cara Wilking argues that elimination of the sales tax exemption for sodas is a reasonable first step to reduce the impact of sugary drinks on obesity. However, a per ounce excise tax would have a more significant impact, according to Wilking.
Philip Morris and RJ Reynolds hit by $40 million verdict in Florida this week
Friday, April 29th, 2011
FOR IMMEDIATE RELEASE
Contact: Edward L. Sweda, Jr. or Mark Gottlieb 617-373-8462 or 617-373-2026
A Jacksonville, Florida jury this week assessed $34 million in punitive damages against tobacco giants Philip Morris and R.J. Reynolds Tobacco Co. for their reprehensible misconduct in the case of Andy Allen v. R.J. Reynolds Tobacco Co., et al. This award followed a compensatory damages award of $6 million for the family of Patricia Allen, who died of chronic obstructive pulmonary disease (COPD) after having smoked for 36 years. Ms. Allen, who was born in 1948, started smoking in high school at a time when the tobacco companies were targeting teenage girls, according to Allen family attorney Keith Mitnick of Morgan & Morgan.
Edward L. Sweda, Jr., senior Attorney for the Tobacco Products Liability Project (TPLP), a project of the Public Health Advocacy Institute, based at Northeastern University School of Law in Boston, was delighted with the jury’s verdict. Noting that the jury “expressed appropriate and justifiable outrage at the reprehensible misconduct of these tobacco companies,” Sweda applauded the verdict, which was the third highest among the 30 plaintiff verdicts of the 43 Engle Progeny trials that have reached a verdict since February 2009.
It is also significant that this huge plaintiff victory occurred in Jacksonville, since approximately 4000 Engle Progeny cases are pending in state and federal court in Jacksonville.
TPLP Executive Director Mark Gottlieb said, “these trials stemming from the Engle class action suit of the 1990s disrupt business as usual for cigarette companies as juries continually find them liable at an astaunding rate.”
Florida jury Returns multi-million verdict against tobacco companies
Thursday, February 24th, 2011
FOR IMMEDIATE RELEASE -
Contact: Edward L. Sweda (617-373-8462) or
Mark Gottlieb (617-373-2026)
A jury in Gainesville, Florida today assessed punitive damages in the amount of $1.5 million against R.J. Reynolds Tobacco Co. (RJR) and another $1.5 million against Philip Morris (PM) in an Engle Progeny case. The same jury on Tuesday night awarded the family of John Huish $750,000 in compensatory damages, attributing 25% fault to RJR, 25% to Philip Morris and 50% to Mr. Huish. So, The compensatory damages award will be reduced by 50%.
Of the 35 Engle Progeny trials that have reached a jury verdict since February 2009, 24 have been plaintiff verdicts (69%).
Mr. Huish, who died of small-cell lung cancer in 1993 at the age of 64, had started smoking two decades before warning labels appeared on cigarette packs. He started smoking Lucky Strikes, followed by Camel, Chesterfield, Marlboro and then Marlboro Lights. Mr. Huish’s widow, Anna Louise Huish, brought the lawsuit and is represented by the West Palm Beach firm of Searcy, Denney, Scarola, Barnhart & Shipley. Attorney James Gustafson can be reached at 800-780-8607.
Senior Attorney for the Tobacco Products Liability Project at Northeastern University School of Law (TPLP), Edward L. Sweda, Jr. was delighted with the verdict: “This jury was justifiably appalled by what it learned about the tobacco companies’ outrageous misconduct during the decades that John Huish was an addicted customer. Someone who is not addicted would not have smoked two or more packs per day for 46 years, as Mr. Huish did before succumbing to lung cancer.”
TPLP Director Mark Gottlieb noted that, “Jury after jury of ordinary folks have found the way that cigarette makers conduct their business is deserving of punishment. With thousands of these cases in the pipeline in Florida, it’s going to be a long slog for Philip Morris and R.J. Reynolds.”
The Tobacco Products Liability Project is a project of the Public Health Advocacy Institute (PHAI) at Northeastern University School of Law in Boston, MA. PHAI is an independent federally recognized non-profit charity.
PHAI’s Gottlieb supports smoke-free parks in Cambridge Chronicle Guest Commentary
Tuesday, February 22nd, 2011
On February 21, 2011, the local Cambridge newspaper, the Cambridge Chronicle, published a guest opinion piece by PHAI’s executive director supporting efforts to prohibit smoking in public parks in that city. A similar proposal is pending in Boston and New York City passed one earlier this month.
Gottlieb’s commentary can be seen here. He mentions 3 primary reasons for supporting the initiative: 1) health; 2) behavior modeling; and 3) litter reduction.
A list from Americans for Non-Smokers’ Rights of nearly 500 cities and towns that prohibit smoking in parks can be found here (pdf).
Minnesota Court Of Appeals gives green light to “light” cigarette class action lawsuit against Philip Morris
Tuesday, December 28th, 2010
FOR IMMEDIATE RELEASE
Contact: Edward L. Sweda, Jr. or Mark Gottlieb (617) 373-8462 or (617) 373-2026
Class is certified; consumer protection law claims are reinstated since they establish “public benefit;” claims not barred by Minnesota’s 1998 settlement with tobacco companies or by 2009 federal legislation; claims not barred by statute of limitations.
The Minnesota Court of Appeals today issued a “resounding victory” for a class of Minnesota smokers of Marlboro Light cigarettes, according to Edward L. Sweda, Jr., Senior Attorney for the Tobacco Products Liability Project (TPLP), which is a project of the Public Health Advocacy Institute (PHAI), based at Northeastern University School of Law in Boston.
In a the case of Curtis, et al. v. Altria Group Inc. and Philip Morris, Inc., which was filed in 2001, the plaintiffs allege that Philip Morris engaged in a decades-long pattern of “false advertising, consumer fraud and deceptive trade practices regarding ‘light cigarettes in violation of Minnesota consumer-protection statutes.” As class certification in similar “light” cigarette lawsuits in Missouri, Massachusetts and New Hampshire has been upheld, the Minnesota Court of Appeals today affirmed the district court’s certification of the plaintiff class, noting that the district court “found that all members of the class have been similarly injured by Philip Morris’s alleged lengthy course of prohibited conduct. And the record supports this finding.”
Sweda also was pleased that the Court of Appeals rejected Philip Morris’s contention that Minnesota’s 1998 settlement with the major tobacco companies barred this lawsuit, which was brought on behalf of individual consumers, not the state of Minnesota. Importantly, the Court of Appeals ruled that the public-benefit requirement of the claims “is met in this case,… by the fact that Philip Morris made allegedly false representations to the general public, and we reject the argument that prior action by the attorney general deprives this lawsuit of public benefit.”
“Now that this important consumer-protection lawsuit can proceed, I look forward to it going to the trial in the near future,” Sweda concluded
The decision can be read here.
#30
Boston jury delivers $81 million punitive damages verdict against Lorillard
Thursday, December 16th, 2010
FOR IMMEDIATE RELEASE
Contact: Edward L. Sweda, Jr. or Mark Gottlieb (617) 373-8462 or (617) 373-2026
A Suffolk Country jury, after finding Lorillard liable on December 14, 2010 for the wrongful death of a woman who was given free Newport cigarettes by the company as a child growing up in a Boston public housing project, today issued a punitive damages verdict of $81 million against the maker of Newports.
The jury heard testimony from an economist and an accountant who discussed the assets of Lorillard and its ability to pay. The plaintiff called forensic economist Robert Johnson who testified that Lorrilard’s net sales this year came out to about $81 million for a 5 day work week. He also noted that Lorillard was on track to make a profit of over a billion dollars this year. On cross-examination, Johnson was asked about presentations he has given at conferences organized by PHAI’s Tobacco Products Liability Project.
The defense called local certified public accountant, Robert H. Temkin, who suggested that Lorillard’s ability to pay was less than what Johnson suggested.
The defense’s closing argument, delivered by Shook, Hardy & Bacon’s Walter Cofer, told the jury that, although he shares a name with his grandfather, they are not the same man. Likewise, he reasoned, the Lorillard of today is not the same company that parked a truck next to a playground and gave free cigarettes to children.
The purpose of punitive damages is to punish bad conduct and deter future bad conduct. Cofer argued that that because the tobacco industry is now regulated the the U.S. Food and Drug Administration, the regulatory agency will ensure that no future bad conduct takes place. As for the punishment, Cofer analogized that it was sometimes necessary to “whack a mule on the rump” to get it moving in the right direction. But, he said, once that mule was heading the right way, there was no need to keep whacking it. Lorillard now admits that its products are addictive and deadly, so “whacking it again and again is not necessary.”
Michael Weisman of Davis, Malm & D’Agostine in Boston told the jury that just because Lorillard is now subject to new federal regulatory authority, it does not get them off the hook for what they did and what they do not now do, like make a serious commitment to keep kids from smoking today.
The jury was instructed by judge Elizabeth M. Fahey to consider the character, duration, and nature of Lorillard’s conduct; the actual harm to the victim in this case; the the magnitude of the harm to potential victims in the future. The jury retired to lunch and, about 90 minutes later, returned the verdict in the amount of $81 million, bringing the total liability in the trial to $152 million.
Judge Fahey has yet to rule on the question of Lorillard’s liability under Massachusetts consumer protection law, which could increase the defendant’s total liability. Lorillard is expected to seek a reduction in the amount in its post-trial motions. It will then likely appeal to the Massachusetts Appeals Couort, then the Massachusetts Supreme Judicial Court, and, if necessary, to the U.S. Supreme Court.
Mark Gottlieb, Director of the Tobacco Products Liability Project at Northeastern University School of Law, who was present for today’s hearing, noted that: “the total verdict of $152 million is currently the largest verdict in an individual smoking and health case. Larger verdicts in California and Florida were later reduced. The jury’s message to Lorillard was clear: ‘What was done to Ms. Evans was totally unacceptable.’ More cases involving addicting children with free samples will almost certainly be filed as a result of this case.”
Senior Attorney Edward L. Sweda, Jr., noted, “Today’s award of $81 million in punitive damages clearly reflects this American jury’s outrage at the predatory conduct of Lorillard Tobacco Company – conduct that was a legal cause of Marie Evans’ death from lung cancer at age 54.”
Plaintiff Willie Evans emerges from the courtroom after the verdict
PHAI’s Daynard provides extended audio commentary on Evans verdict
Wednesday, December 15th, 2010
In an interview on WBUR Boston, an NPR affiliate, Professor Daynard explains the case and its significance.
Listen to the interview here.
PHAI publishes Special Verdict Sheet from Evans trial
Wednesday, December 15th, 2010
(Please note that the jury was deadlocked on Questions 5 and 6)SUFFOLK, SS. CIVIL ACTION NO. 2004-2840-A
WILLIE EVANS, AS EXECUTOR OF THE ESTATE OF MARIE R. EVANS
Plaintiff
v.
LORILLARD TOBACCO COMPANY
Defendant
SPECIAL JURY VERDICT FORM
SECTION 1 -LIABILITY
Question 1: NEGLIGENCE
(Please answer all three subparts, a through c, of Question 1.)
a. Was Defendant Lorillard Tobacco Company negligent in the design, marketing and/or distribution of Newport cigarettes?
YES__X NO _____
b. Was Defendant Lorillard Tobacco Company negligent in failing to warn Marie Evans of the health hazards and/or addictive properties of Newport cigarettes at any time prior to 1970?
YES__X NO _____
c. Did Defendant Lorillard Tobacco Company, directly or through its agents, negligently distribute Newport cigarettes by giving samples of such cigarettes to minors, including Marie Evans?
YES__X NO _____
(If your answer to any subpart of Question 1 is “Yes,” proceed to Question 2. If your answer to all of the subparts of Question 1 is “No,” proceed to Question 3.)
Question 2: CAUSATION AS TO NEGLIGENCE
Was any negligence of Defendant Lorillard Tobacco Company a substantial factor in causing Marie Evans’s lung cancer?
YES__X NO _____
(Proceed to Question 3.)
Question 3: BREACH OF IMPLIED WARRANTY OF MERCHANTABILITY
(Please answer both parts, a and b, of Question 3.)
a. Did Defendant Lorillard Tobacco Company breach its implied warranty of merchantability because the Newport cigarettes that it sold to Marie Evans and other consumers were defective and unreasonably dangerous?
YES__X NO _____
b. Did Defendant Lorillard Tobacco Company breach its implied warranty of merchantability by failing to provide consumers, including Marie Evans, an adequate warning of the health hazards and/or addictive properties of Newport cigarettes, at any time before 1970?
YES__X NO _____
(If your answer to either subpart of Question 3 is “Yes,” proceed to Question 4. If your answer to both of the subparts of Question 3 is “No,” proceed to Question 5.)
Question 4: CAUSATION AS TO BREACH OF IMPLIED WARRANTY
Was any breach of warranty by Defendant Lorillard Tobacco Company a substantial factor in causing Marie Evans’s lung cancer?
YES__X NO _____
(Proceed to Question 5.)
Question 5: CIVIL BATTERY
a. Did Lorillard commit a battery by distributing free Newport cigarettes to Ms. Evans before October 23, 1965 (when she turned 18 years old)?
YES____ NO _____
(Please proceed to Question 6 if your answer to Question 5 is “Yes.” If your answer to Question 5 is “No,” proceed to Question 7.)
Question 6: CAUSATION AS TO CIVIL BATTERY
Was Marie Evans’s receipt of free Newport cigarettes substantial factor in causing her to develop lung cancer?
YES___ NO _____
(Proceed to Question 7.)
Question 7: VOLUNTARY UNDERTAKING OF DUTY
a. Did Lorillard voluntarily undertake, through the Frank Statement, a duty to research the health hazards of smoking and to disclose accurate information regarding the results of that research to the smoking public, including Marie Evans?
YES__X NO _____
(If your answer is “Yes” to Question 7.a., proceed to Question 7.b. If your answer is “No” to Question 7.a., please proceed to Question 8 and follow the directions.)
b. Did Lorillard breach the duty that it voluntarily undertook by being negligent in the performance of that duty?
YES__X NO _____
(If your answer is “Yes” to Question 7.b., proceed to Question 7.c. If your answer is “No” to Question 7.b., please proceed to Question 8 and follow the directions.)
c. Was Lorillard’s breach of the duty that it voluntarily undertook a substantial factor in causing Marie Evans to develop lung cancer?
YES__X NO _____
(Proceed to Question 8.)
Question 8: GROSS NEGLIGENCE AND MALICIOUS, WILLFUL, WANTON OR RECKLESS MISCONDUCT
(If you answered ”yes” to any or all of Questions 2, 4, 6, or 7.c., please answer both subparts of Question 8. If you answered “no” to all of Questions 2, 4, 6, and 7.c., the Foreperson should sign this Special Verdict Form and notify the Court Officer that you have reached a verdict)
a. Was Defendant Lorillard Tobacco Company grossly negligent?
YES__X NO _____
b. Did the Defendant Lorillard Tobacco Company act in a manner that was malicious, willful, wanton or reckless?
YES__X NO _____
(If your answer to either subpart of Question 8 is “Yes,” proceed to Question 9. If your answer to both subparts of Question 8 is “No,” proceed to Question 10 and follow the directions.)
Question 9: CAUSATION AS TO GROSS NEGLIGENCE OR MALICIOUS, WILLFUL, WANTON OR RECKLESS MISCONDUCT
Was any gross negligence, or malicious, willful, wanton or reckless conduct, of Defendant Lorillard Tobacco Company substantial factor in causing Marie Evans’s lung cancer?
YES__X NO _____
(Proceed to Question 10.)
SECTION 2 – COMPARATIVE NEGLIGENCE
Question 10: COMPARATIVE NEGLIGENCE AND APPORTIONMENT OF NEGLIGENCE
(Please answer Question 10 only if you answered ”yes” to Question 2 and/or
Question 7.c. If you answered “no” to Question 2 and Question 7.c., please proceed to Section 3 and follow the directions.)
a. Was any negligence on the part of Marie Evans a substantial factor causing her lung cancer?
YES__X NO _____
(If your answer to subpart 10.a. is ”yes,” then please answer subpart b. If your answer to subpart 10. a. is “no,” then proceed to Question 11.)
b. What percentage of negligence is attributable to Plaintiff Marie Evans and to Defendant Lorillard Tobacco Company?
(Please note that your answers must add up to 100%.)
Marie Evans 30%
Lorillard Tobacco Company 70%
———–
Total 100 %
(Proceed to Question 11 and follow the directions.)
SECTION 3 – DAMAGES
(Please answer Questions 11 and 12 if you answered “Yes” to Questions 2, 4, 6, and/or 7. c. If you did not answer ”yes” to any of Questions 2, 4, 6 or 7.c., the Foreperson should sign this Special Verdict Form and notify the Court Officer that you have reached a verdict.)
Question 11: DAMAGES TO COMPENSATE WILLIE EVANS FOR HIS LOSS
What amount of money do you find will fairly, fully and adequately compensate Willie Evans for his loss of the services, protection, care, assistance, society, companionship, comfort, guidance, counsel and advice of his mother, Marie Evans?
Please write your answer both in numbers and in words.
$21,000,000.00
(Amount in Numbers)
Twenty-one million dollars.
(Amount in Words)
(Please proceed to Question 12)
What amount of money do you find will fairly, fully and adequately compensate for the conscious pain and suffering that Marie Evans suffered from her lung cancer on account of any wrongful conduct of Defendant Lorillard Tobacco Company?
Please write your answer both in numbers and in words.
$50,000,000.00
(Amount in Numbers)
Fifty million dollars.
(Amount in Words)
I HEREBY CERTIFY THAT THE FOREGOING ANSWERS ARE THOSE OF AT LEAST 5/6th OF THE JURORS IN THIS CASE.
DATED: _December 14, 2010 _____________________
Foreperson of the Jury
Lorillard suffers big loss in Massachusetts wrongful death case where free samples of Newport were provided to African-American children in Roxbury housing project
Tuesday, December 14th, 2010
FOR IMMEDIATE RELEASE
Contact: Edward L. Sweda, Jr. or Mark Gottlieb (617) 373-8462 or (617) 373-2026
A Suffolk Superior Court jury slammed Lorillard Tobacco Company today in the first tobacco trial in Massachusetts in a generation. The case, Evans v. Lorillard, involved a wrongful death claim brought by the son of a woman who was repeatedly provided with free samples of Newport cigarettes near the playground of the Orchard Park housing project in the Roxbury neighborhood of Boston in the late 1950s. The woman, Marie Evans, was addicted by the time she was 13 years old and, despite many quit attempts, was unable to stop smoking. She died at the age of 54 in 2002 and her videotaped deposition was seen by the jury of 14.
Initial reports are that Lorillard was found liable for $50 million to Ms. Evans’ estate and for $21 million to her only son, Willie, for loss of companionship.
It was also reported that a one-day hearing on possible punitive damages against Lorillard will be held on Thursday, December 16. The jury will reconvene and deliberate following that hearing.
The trial has taken place while the U.S. Food and Drug Administration is considering whether to extend the ban on flavored cigarettes to include menthol. Experts testified at the trial and before an FDA panel that menthol anesthetizes the lung and facilitates smoking initiation.
The Evans estate was represented by Michael D. Weisman of the Boston firm of Davis, Malm & D’Agostine, P.C..
Mark Gottlieb, Director of the Tobacco Products Liability Project at Northeastern University School of Law noted: “While the practice of providing samples of menthol cigarettes to children in the predominantly African-American portion of a public housing project is particularly egregious, it is not terribly different from what still goes on today. 75% of African-Americans prefer menthol brands and logo and price promotions continue to target that market. More than 60% of cancer mortality among African-American men is attributable to tobacco use.”
Senior Attorney for the Tobacco Products Liability Project, Edward L. Sweda, Jr., added, “It is gratifying to see that this American jury saw fit to hold a large, corporate wrongdoer accountable, if only financially, for its decades-long reprehensible misconduct.”
