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Archive for the ‘Press release’ Category

PHAI Begins Legal Action against Star Markets Over Illegal Lottery Ticket Sales To Minors

Tuesday, September 30th, 2014

The Public Health Advocacy Institute (PHAI) today sent a demand letter to the Star Markets supermarket chain, charging the company with violating the Massachusetts Consumer Protection Act by illegally selling lottery tickets to minors.  The letter calls on Star Markets to remove lottery scratch ticket vending machines from its stores.

PHAI sent the letter on behalf of Craig Kelley, the father of a 14-year old boy who purchased lottery tickets from vending machines at two Star Market locations, and also on behalf of the Stop Predatory Gambling Foundation.  The Foundation is a national non-profit organization with an office in Massachusetts, whose mission is to end the unfairness and inequality created by government-sponsored gambling.

ckfrenzy

According to the letter, Massachusetts law expressly prohibits the sale of lottery tickets to “any person under age eighteen” (G.L. c. 10, sec. 29).  Yet, the Massachusetts Council on Compulsive Gambling reports that over two-thirds of teenage boys (aged 14-17) have gambled in the past year, and over half of teenage girls have done so.  About a third of these children gambled by playing lottery games.

The boy’s father, Craig Kelley, said, “Both my son and I were amazed at how easily a 14 year-old boy could walk into a major supermarket and buy lottery tickets from a vending machine.  This easy access to gambling simply does not give our children the safe environment that we owe them, and we need to stop it.”

The boy purchased the lottery tickets on the evening of September 24 at the Star Market stores in Porter Square in Cambridge, and on Beacon Street in Somerville.  He was able to get access to the machines and purchase Mega Millions and $500 Frenzy game tickets without any difficulty, and without being asked to provide any proof of age.

“The future of lotteries and casinos hinges on luring kids to develop a gambling habit,” said Stop Predatory Gambling’s National Director Les Bernal of Lawrence. “Our state government appears to be training kids with these free-standing lottery machines and their addictive scratch tickets – training them for slot machines in casinos.”

Northeastern University Professor Richard Daynard, President of PHAI, also addressed the implications for casinos:  “If a basic protection like age restrictions on the sale of state lottery tickets is not being enforced, what can we expect if casinos and slot parlors are actually allowed to open in Massachusetts?”

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Florida jury holds Philip Morris USA accountable for its actions in Federal Court

Thursday, September 25th, 2014

On September 16, 2014, a jury in the U.S. District Court for the Middle District of Florida returned a verdict of $27,010,000.14 against Philip Morris USA on behalf of Judith Berger, who started smoking in 1958 at the age of 14.  Clearly outraged by evidence of Philip Morris’ conduct in targeting children, the jury awarded over $20 million in punitive damages and added fourteen cents to the total.  Judith Berger, as did her now-deceased twin sister, developed severe chronic obstructive pulmonary disease (COPD) from smoking.

Kenny Byrd, the lead trial counsel for Lieff Cabraser, which represented the plaintiff, was delighted with the verdict.  “We are pleased that the jury held Philip Morris accountable for their calculated choice to target children, such as Mrs. Berger, to take up smoking.  The addition of the 14 cents is just as meaningful as the $20 million before it.  The jury understood our society should protect 14-year-olds, not target them for profits as the cigarette industry does.”

One of the pieces of evidence presented to the jury was a Philip Morris memo that said “today’s teenager is tomorrow’s regular customer.”

This case in federal court is one of thousands of “Engle Progeny” lawsuits that were filed following the Supreme Court of Florida’s 2006 ruling in Engle v. Liggett Group, Inc., 945 So. 2d 1246 (Fla. 2006).  The trials in these lawsuits, which began in February 2009, have resulted in plaintiff verdicts in approximately two-thirds of the 120 such trials that have reached a jury verdict.  While most of these cases are being tried it state court, it is encouraging to see plaintiff victories occurring in federal court as well.

Not surprisingly, Philip Morris relied on its well-worn “personal responsibility” defense as its main attempt to evade accountability.  Plaintiff co-counsel Lance Oliver of Motley Rice LLC, commented that, at trial, “Philip Morris attempted to lay all the blame on Mrs. Berger for choices she made as a kid.  Thankfully, the jury saw through this and held Philip Morris accountable for its choices.”

When juries learn the details of outrageous tobacco industry behavior, the end result will be more verdicts – including punitive damages – comparable in size and scope as the one in this case.  After the verdict, Mrs. Berger reacted as follows: “I am so grateful that the jury held Philip Morris accountable for its actions over the past 60 years.  Before this lawsuit, I had no idea that the tobacco industry deliberately designed cigarettes to make them addictive and then conspired to lie to the public about their deadly effects.  I fought this battle in part for my twin sister Josephine – may she rest in peace – who died from the same disease that will take my life in the next few years.  I encourage anyone whose rights are violated by Philip Morris – or any corporation – to stand up, fight for justice and hold them accountable for their actions.”

Achieving justice and holding powerful corporations accountable for their wrongdoing: that’s what the Engle Progeny litigation is all about.

-Ed Sweda



PHAI’s Gottlieb and Wilking Co-author study in JAMA Pediatrics Showing that Fast Food Giants Confuse and Deceive Kids

Monday, March 31st, 2014

 

Boston –

After much criticism and prodding, Fast food giants McDonald’s and Burger King agreed to depict healthier food options in advertising directed at children.  Researchers at the Norris Cotton Cancer Center at Dartmouth-Hitchcock, along with the Public Health Advocacy Institute (PHAI) at Northeastern University School of Law, found that attempts to honor these pledges by depicting healthier kids’ meals frequently go unnoticed by children ages 3 to 7 years-old.  In research published on March 31, 2014 in JAMA Pediatrics, these researchers found that one-half to one-third of children did not identify milk when shown McDonald’s and Burger King children’s advertising images depicting that product. Sliced apples in Burger King’s ads were identified as apples by only 10 percent of young viewers; instead most believed that the ads were depicting  french fries. 

Children in the study were confused by the images of food.  One typical participant said, “And I see some…are those apples slices?” 

The researcher replied, “I can’t tell you…you just have to say what you think they are.”

“I think they’re french fries,” the child responded.


Video of this and other responses from children participating in the study

“Burger King’s depiction of apple slices as ‘Fresh Apple Fries’ was misleading to children in the target age range,” said principal investigator James Sargent, MD, co-director Cancer Control Research Program at Norris Cotton Cancer Center. “The advertisement would be deceptive by industry standards, yet their self-regulation bodies took no action to address the misleading depiction.”

Mark Gottlieb, Executive Director of PHAI and an author of the study, observed that, “when young children believe they will be getting french fries with their meals because of deceptive or confusing advertising imagery, they may insist that the adult bringing them orders french fries instead of apple slices. Likewise, if advertising leads children to expect a sugary drink rather than milk, they may well end up getting the sugary drink. This has the effect of undermining the self-regulatory pledges that the companies made.”

Study author and PHAI Senior Staff Attorney Cara Wilking said she found it, “troubling that fast food giants would publicly make a self-regulatory pledge, fail to live up to the pledge, and receive no sanction from the relevant self-regulatory body. Such failures suggests that self-regulation is often more about public relations than about fulfilling the role of actual governmental regulation.”

Sargent and his colleagues studied fast food television ads aimed at children from July 2010 through June 2011. In this study researchers extracted “freeze frames” of Kids Meals shown in TV ads that appeared on Cartoon Network, Nickelodeon, and other children’s cable networks. Of the four healthy food depictions studied, only McDonald’s presentation of apple slices was recognized as an apple product by a large majority of the target audience, regardless of age. Researchers found that the other three presentations represented poor communication.

This study follows an earlier investigation conducted by Sargent and his colleagues, which found that McDonald’s and Burger King children’s advertising emphasized giveaways like toys or box office movie tie-ins to develop children’s brand awareness for fast food chains, despite self-imposed guidelines that discourage the practice.

While the Food and Drug Administration and the Federal Trade Commission play important regulatory roles in food labeling and marketing, the Better Business Bureau operates a self-regulatory system for children’s advertising. Two different programs offer guidelines to keep children’s advertising focused on the food, not toys, and, more specifically, on foods with nutritional value.

“The fast food industry spends somewhere between $100 to 200 million dollars a year on advertising to children, ads that aim to develop brand awareness and preferences in children who can’t even read or write, much less think critically about what is being presented.” said Sargent. 

Citation:

Bernhardt AM, Wilking C, Gottlieb M, Emond J, Sargent JD. Children’s Reaction to Depictions of Healthy Foods in Fast-Food Television Advertisements. JAMA Pediatr.2014;():. doi:10.1001/jamapediatrics.2014.140.

This study was funded by the Robert Wood Johnson Foundation’s Healthy Eating Research program.



PHAI Board Member and President File Class Action to Address U.N. Cholera Tragedy in Haiti

Thursday, March 13th, 2014

On March 11, 2014, Richard Daynard, University Distinguished Professor of Law at Northeastern University and President of the Public Health Advocacy Institute, Dr. Tim Howard, President of Cambridge Graduate University and PHAI board member, along with former U.S. environmental litigation attorney Stanley Alpert, and James Haggerty filed a class action in US District Court in Brooklyn, NY against the United Nations.  The lawsuit, Marie Laventure et al. v. United Nations et al.,  seeks to force the UN to take responsibility for the massive Haitian cholera contagion which has killed upwards of 9,000 Haitians and sickened hundreds of thousands, compensate victims, and bring critical sanitation to Haiti.  The contagion has since spread to the Dominican Republic, Mexico, Cuba, Puerto Rico, and the United States, with at least three cases of cholera confirmed in New York City since 2010, and a sustained outbreak in Mexico.

Marie Laventure is one of 1,500 plaintiffs in the legal action. Laventure resides in Atlanta, is the sister of a Haitian US citizen of New York, and the oldest of 12 siblings: two residing in New York, one residing in Atlanta, and eight in Haiti. Some of her Haitian siblings are as young as ten years old. Marie and her family lost their father and stepmother to the UN Haiti cholera contagion outbreak. She and her US brother and sisters are sending money to help their young siblings survive.

An independent panel, appointed by U.N. Secretary-General Ban Ki-moon to study the epidemic that has killed more than 8,300 people and sickened more than 650,000, issued a report in 2011 that did not determine conclusively how the cholera was introduced to Haiti. However, the U.S. Centers for Disease Control and Prevention and others can prove that   U.N. peacekeepers from Nepal were the source after they set up a camp near the Meille River, which was improperly handled by U.N. contractors who dumped infected waste into the water supply.  Before this occurred, cholera was wholly absent from Haiti. The disease was endemic in Nepal and Nepalese soldiers were not screened before being sent to Haiti by the U.N.. Attorney Dr. Tim Howard stated, “The United Nations knew that disease, injury and death would result from a cholera contagion outbreak, and that conditions in Haiti were ripe for a cholera contagion outbreak if proper sanitation was not in place.”

The lawsuit asks the court to declare that the U.N. does not enjoy legal immunity from liability for the cholera outbreak, despite its humanitarian role in assisting Haiti.  Among the documents referenced in the lawsuit is the United Nation s 2004 agreement with Haiti, which explicitly waived sovereign immunity, stating that “[t]hird-party claims for…personal injury, illness or death arising from or directly attributed to [the Stabilization Agreement] shall be settled by the United Nations…and the United Nations shall pay  compensation . . .” Another document referenced in the lawsuit shows that the UN General Assembly expressly admits that international law requires the UN to pay compensation for damages caused through its operations.  Attorney Stanley Alpert added,  “Imagine if the UN had killed 9,000 in the heart of New York City or Paris. Would they cry ‘immunity’ then? The lack of regard for the value of Haitian lives is distressing and indefensible.”

On March 7, 2014, the U.S. Department of Justice supported the U.N. in a written court filing asserting that the United Nations’ mission to Haiti was “absolutely immune from legal process” in an earlier class action suit on behalf of the country’s cholera victims brought by the Institute for Justice and Democracy in Haiti last year.

The Haitian cholera contagion outbreak still kills approximately 1,000 Haitians each year and sickens many thousands more.

Public Health Advocacy Institute executive director Mark Gottlieb agreed that the United Nations needs to be held accountable for this public health crisis stating, “Cholera, previously unknown in Haiti, is a severe and devastating disease that, in this case, was entirely preventable.  It is deeply disappointing and shocking that the United Nations’ actions caused so much suffering, illness and death in Haiti and beyond.

The complaint can be downloaded here.

 

 

 



50 Years after the Surgeon General’s Report (#SGR50): Conference to Show How to End Tobacco-caused Addiction, Death, and Disease

Friday, January 17th, 2014

Contact: Mark Gottlieb 617-373-20026

FOR IMMEDIATE RELEASE

Boston –   The Surgeon General’s Report on Tobacco and Health released today demonstrates how far we have come in addressing the loss of health and loss of life caused by the use of the tobacco industry’s products.  But after a half century, we still have tens of millions of Americans addicted to tobacco products that will cause the premature death of nearly half of them.

After 50 years, this has to stop. 50th-anniversary-surgeon-general

The time has come to aggressively deploy policies that will bring an end to the cycle of addiction, disease and death.  In the Report, such policies are referred to as “endgame strategies.”

On September 19-20, 2014, the Public Health Advocacy Institute, in conjunction with the Tobacco Control Legal Consortium and Northeastern University School of Law will host a conference for advocates, health leaders and policymakers to do just that.

“50 Years After the Surgeon General’s Report: Accelerating Tobacco Endgame Strategies in the United States” will provide a blueprint to show what laws, regulations and policies can:

Speakers will include exceptional tobacco control researchers and policy leaders sharing both evidence-based best practices and bold new practices that comprise a true endgame for tobacco products.

Northeastern University Distinguished Professor of Law, Richard Daynard, a contributing editor to the Report who also serves as president of the Public Health Advocacy Institute said of the conference: “We have the legal and moral authority to make today’s generation of teenagers the first truly tobacco-free generation.  There is no reason for them to ever be addicted to tobacco products much less struggle with cessation repeatedly, as so many do. “

This meeting, the first of its kind in the United States, will highlight federal, state and local actions that will lead to an end to tobacco-caused addiction, death and disease in this country.

Re-imagining tobacco control as a means to truly end a public health problem that still kills more than 400,000 Americans each year is the next chapter in the movement that began 50 years ago when Surgeon General Luther Terry released the first Report on Smoking and Health.

The conference will be held September 19-20 (Fri-Sat) at Northeastern University School of Law in Boston, MA.  Details will be available soon at http://phaionline.org. If you would like to be notified when more information is available, please send an e-mail to moreinfo@phaionline.org.



TPLP Applauds Surgeon General Report’s Focus on Tobacco Litigation (#SGR50); Massachusetts Seen as New Frontier

Friday, January 17th, 2014

FOR IMMEDIATE RELEASE
Contact: Mark Gottlieb (617-373-2026) or Edward L. Sweda, Jr. (617-373-8462)

Boston – The U.S. Surgeon General’s Report on Smoking and Health, which was released today at the White House, highlighted the importance of litigation against tobacco companies over the past 50 years in the United States.  Thanks to a landmark 2013 ruling by the Massachusetts Supreme Judicial Court (SJC) in the case of Evans v. Lorillard Tobacco Co., the Bay State is poised to become the most attractive state in which to file product liability lawsuits against tobacco companies.

“The current state of the law in Massachusetts is that any cigarette that addicts or maintains the nicotine addiction of consumers is defective.  This precedent in Evans will tremendously benefit smokers who are seeking legal redress against tobacco manufacturers in Massachusetts,” said Mark Gottlieb, Director of the Tobacco Products Liability Project (TPLP), a project of the Public Health Advocacy Institute, which is based at Northeastern University School of Law.

In the Evans case, a Suffolk County jury in 2010 awarded the son of Marie Evans, a woman who died of lung cancer in 2002 at the age of 54 after she had been given free packs of Newport cigarettes as a child at the Orchard Park Housing Project, $71 million in compensatory damages – a figure later reduced to $35 million.  In June 2013, the SJC, while overturning an $81 million punitive damages award solely due to a flaw in jury instructions, upheld the compensatory damages award and ruled that it declines “to place addictive chemicals outside the reach of product liability and give them special protection akin to immunity based solely on the strength of their addictive qualities.”  In October, Lorillard announced that it had settled the case for $79 million ($35 million plus accumulated interest) and dropped its threatened appeal to the U.S. Supreme Court.

“The SJC’s opinion in Evans now stands as a landmark precedent, binding in Massachusetts and potentially persuasive in any other jurisdiction in the country,” said Edward L. Sweda, Jr., TPLP’s Senior Attorney.  “Anyone who developed a tobacco-related disease from smoking any cigarettes (other than “ultra low tar and nicotine” cigarettes) in Massachusetts can now recover their damages from the cigarette manufacturer,” Sweda added.

Massachusetts residents and their families who have suffered from a disease or death caused by smoking should contact TPLP.



PHAI’s Gottlieb Calls for No Tobacco Sales to Anyone Under Age 21 in New England Journal of Medicine

Wednesday, January 8th, 2014

-Boston

In a “Perspective” article published today in the New England Journal of Medicine, the Executive Director of the Public Health Advocacy Institute at Northeastern University School of Law, Mark Gottlieb, urges adoption of the Tobacco 21 policy as a means to reduce smoking rates by getting tobacco out of high schools. The piece, entitled, “Tobacco 21 — An Idea Whose Time Has Come,” is co-authored with Dr. Jonathan P. Winickoff, a pediatrician at Massachusetts General Hospital and Harvard Professor of Law and Public Health, Michelle M. Mello.

21+“Tobacco 21″ is shorthand for a legal policy that prohibits the sale or furnishing of tobacco products to persons under the age of 21. The policy was adopted either as a regulation or ordinance in New York City, 7 Massachusetts towns, and the Big Island of Hawaii in 2013. It was pioneered in Needham, Massachusetts in 2005 where, over five years, the smoking rate among high school students has dropped at nearly three times the rate of its neighboring communities where tobacco was available to 18-20 year-olds. Because almost all cigarette smokers start prior to age 21 and quickly become addicted, there is good reason, supported by emerging neuroscience, that deferring access to tobacco products to an age where the brain is less susceptible to the addictive qualities of nicotine will significantly reduce smoking rates.

Co-author Mark Gottlieb said, “Tobacco 21 shows great promise to reduce tobacco use and can be adopted by any state and most cities and towns.” “There is no good reason why a product as addictive and deadly as cigarettes should be made available to teenagers when we know that delaying access will reduce the chance that today’s teens will die prematurely from a smoking-caused disease,” Gottlieb concluded.

The article can be freely downloaded at: http://www.nejm.org/doi/full/10.1056/NEJMp1314626?query=featured_home

 



PHAI Releases Major Report on Digital Food Marketing to Youth: Urges State Attorneys General to Act

Thursday, December 19th, 2013

December 19, 2013

The Public Health Advocacy Institute (PHAI) at Northeastern University School of Law, along with our partners at the Center for Digital Democracy and Berkeley Media Studies Group, today releases State Law Approaches to Address Digital Food Marketing to Youth.  It is a first-of-its kind resource that provides an evidence base and action steps grounded in state law.  State attorneys general and other stakeholders in children’s health and privacy can use it to put a stop to troubling digital marketing practices that deceive youth and their parents.

In addition to clear explanations of how digital marketing works and why it poses privacy and health risks to youth, key legal issues for state regulators are explored.  These issues include personal jurisdiction over out-of-state food and beverage marketing and media companies; the interplay of federal and state laws regulating mobile marketing; and the application of state promotions laws to child consumers.

Key findings include:

Senior Staff Attorney, Cara Wilking, who was lead author of the report, noted that, “state attorneys general are in a unique position to leverage state law approaches to stop unfair, deceptive, or otherwise illegal digital marketing of unhealthy foods to our youngest and most vulnerable consumers.”

PHAI’s Executive Director, Mark Gottlieb, added, “there is a general failure to understand the disturbing marketing practices that are becoming commonplace in the digital marketing world. This report goes a long way toward closing the knowledge gap between those using powerful technology to sell junk to kids and those who have the responsibility to protect them.”

State Law Approaches to Address Digital Food Marketing to Youth Report

Support for State Law Approaches to Address Digital Food Marketing to Youth was provided by the Robert Wood Johnson Foundations Healthy Eating Research Program (#69293).

 

 



PHAI researchers co-author article in AJPH describing how health advocates battling the food and beverage industry can learn by looking back at the smoking and health crisis of the late 1950s and early 60s

Thursday, November 14th, 2013

Richard Daynard, Lissy Friedman, and Mark Gottlieb have co-authored an article published today in the American Journal of Public Health, along with our research partners from Berkeley Media Studies Group (BMSG). The article is entitled: “Cigarettes Become a Dangerous Product: Tobacco in the Rearview Mirror, 1952–1965.”

BMSG’s press release appears below:

Nutrition advocates may be able to use lessons from tobacco control to help government move faster toward protecting the public from harmful food and beverage company products and marketing practices, say the authors of a new study published today by the American Journal of Public Health.

In a content analysis of public and internal documents, the authors, from Berkeley Media Studies Group and the Public Health Advocacy Institute at Northeastern University School of Law, examined national newspapers, tobacco industry documents and the Congressional Record and Congressional Index between 1952 and 1965 to learn how health harms from cigarettes were framed in the early days of anti-tobacco advocacy.

The study found that news coverage of tobacco focused primarily on its health harms — not who was responsible for addressing them. Much as nutrition advocates often see headlines today about sugary drinks, junk food or other products that fuel disease, pre-1965 conversations about cigarettes were typically disconnected from the industry that produced them.

As such, the personal responsibility rhetoric the tobacco industry became known for in the 1980s and beyond — rhetoric that food and beverage companies have borrowed and are using today to forestall government regulation and shift blame for their products’ health harms onto the consumers who buy them — was all but absent from both news coverage and industry documents. Instead, tobacco companies focused on raising doubts about cigarettes’ links to lung cancer. More than three-quarters of tobacco industry documents denied that cigarettes are harmful to health, with industry spokespeople claiming that the causes of cancer are complex and more research was needed. The industry also discussed cigarettes’ alleged benefits, such as a “feeling of well-being and refreshment.”

What little discussion there was of culpability identified both individuals and industry as sharing blame for the problem and, strikingly given today’s political discourse, called upon government to act.

“The backdrop for early tobacco control was wildly different from today’s political climate,” Lori Dorfman, the study’s lead author and director of the Berkeley Media Studies Group, said. “Profound distrust of the government has made it harder for public health advocates to make the case for protections from harmful products. In the 60s, a belief in government’s duty to act to protect public health was the norm.”

According to the study, government action was contested only in internal industry documents, not public discussion. News coverage and legislative documents questioned not whether the government should act, but how.

Nevertheless, once the dangers of cigarettes were established, actions were individually oriented and related mostly to providing consumers with more education and warnings about smoking’s health harms.

“We now take for granted how effective tobacco taxes and indoor smoking bans are,” study author and Public Health Advocacy Institute Director Mark Gottlieb said. “But moving tobacco control efforts from smoking cessation to industry regulation happened over the long haul.”

The study authors suggest that advocates now pushing for healthier food environments may be able to do the same, shifting attention from unhealthy foods and beverages to the companies that manufacture and market them. However, they will have to do so within a changed, and more challenging, political context.

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Article abstract link: http://ajph.aphapublications.org/doi/abs/10.2105/AJPH.2013.301475

Ciation: Dorfman L, Cheyne A, Gottlieb MA, Mejia P, Nixon L, Friedman LC, Daynard RA. Am J Public Health. Published online ahead of print November 14, 2013. doi:10.2105/AJPH.2013.301475.

About Berkeley Media Studies Group

Berkeley Media Studies Group researches the way public health issues are characterized in the media and helps community groups, journalists and advocates use the media to advance healthy public policy. BMSG is a project of the Public Health Institute.

About Public Health Advocacy Institute

The Public Health Advocacy Institute (PHAI) is a legal research center focused on public health law at Northeastern University School of Law. PHAI’s goal is to support and enhance a commitment to public health in individuals and institutes who shape public policy through law. PHAI is committed to research in public health law, public health policy development; to legal technical assistance; and to collaborative work at the intersection of law and public health. Their current areas of work include tobacco control and childhood obesity.

 Contact:

Heather Gehlert, BMSG
(510) 704-3471, gehlert@bmsg.org



Historic $79 Million Cigarette Settlement Signifies Beginning of Wave of Tobacco Cases in Massachusetts

Wednesday, October 23rd, 2013

Boston

FOR IMMEDIATE RELEASE

CONTACT: Mark Gottlieb – 617-373-2026

Massachusetts is now the most favorable state in the country to bring a cigarette smoking personal injury case.  A Massachusetts Tobacco Case Information Hotline has been established for victims of smoking and their families to learn more at: 888-991-8728 or here at www.MATobaccoCase.com.

Today’s announcement in Lorillard’s 8K SEC filing of a $79 million settlement for compensatory damages and interest and conclusion of Evans v. Lorillard Tobacco Co. marks the end of the first tobacco trial in Massachusetts since 1990.  Much has changed since then.

In 1994, a torrent of extraordinarily damaging documents from the cigarette companies’ internal files laying out how the companies hid what they knew about the dangers of their products from customers and government became available to the public.

After years of constant litigation and public disclosure of the industry’s bad behavior, in 2006, a federal judge issued a scathing opinion detailing in 1,500 pages of factual findings the industry’s improper activities and finding them liable for racketeering.

These developments have transformed the tobacco litigation landscape.  In Florida, under special rules subsequent to the dismissal of a class action, 71 out of 104 individual tobacco trials held over the past 4 years have resulted in verdicts for the plaintiff.  But the most important state for tobacco litigation is not Florida. It’s Massachusetts.

Massachusetts, benefitting from the combination of two key rulings by the Supreme Judicial Court, is the best state in the nation for litigation against cigarette manufacturers.

In Haglund v. Philip Morris (847 N.E. 2d 315 (2006)), the Massachusetts Supreme Judicial Court unanimously rejected the tobacco industry’s blame-the-smoker-for-smoking defense.  This is the only court opinion in the country that has squarely held that, as a matter of law – except in extremely rare and unlikely cases – the so-called “personal choice defense” is unavailable to the tobacco companies.  The Court wrote that, “If Philip Morris chooses to market an inherently dangerous product, it is at the very least perverse to allow the company to escape liability by showing only that its product was used for its ordinary purpose.”  The affirmative defense that the smoker’s behavior was unreasonable or should have known the risks is not available in Massachusetts.

In this past June’s Supreme Judicial Court ruling in the case announced as settled today, Evans v. Lorillard (465 Mass. 411 (2013)), the Court held that Lorillard breached the implied warranty of merchantability and that cigarettes that were addictive and caused disease were not fit to be sold in Massachusetts.  This rendered virtually every cigarette sold here as defective. The Court reasoned, “We decline to place addictive chemicals outside the reach of product liability and give them special protection akin to immunity based solely on the strength of their addictive qualities.  . . . Rather, we conclude . . . that a reasonable jury could find from the evidence presented that a low tar, low nicotine cigarette constituted a safer reasonable alternative to Lorillard’s Newport cigarettes.”

By “low tar, low nicotine cigarette,” the Court is not referring to brands that were deceptively marketed as “light cigarettes.”  Rather it means cigarettes that do not addict and expose consumers to an array of carcinogens. While the cigarette companies could have sold such products, virtually no cigarettes sold in Massachusetts utilized such a reasonable alternative to the deadly and addictive products that have been so lucrative for Philip Morris, R.J. Reynolds, Lorillard, Brown and Williamson, American Tobacco Co., or Liggett for so long.

As the book closes on Evans v. Lorillard, a new era of tobacco litigation based in Massachusetts is about to begin.  Individuals and family members of those who have suffered from a cigarette-caused illness such as lung cancer, COPD, Buerger’s disease or bladder cancer, to name a few, should contact the Massachusetts Tobacco Case Information Hotline at 888-991-8728 to learn more about their legal rights.  They can also contact the Hotline via the web here.

Mark Gottlieb, Director of the Tobacco Products Liability Project at Northeastern University School of Law noted that, “The time for so many tobacco industry victims in Massachusetts to come forward to hold the industry responsible is finally here.”

Edward Sweda, Senior Attorney for the Project stated, “The state of the law in Massachusetts, as set forth by the Supreme Judicial Court, is that any cigarette that addicts or maintains the nicotine addiction of consumers is defective. This is great news for smokers who seek legal redress from the companies that put these defective products on the market. Conversely, it is disastrous news for the cigarette companies.”

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The Tobacco Products Liability Project is a project of the Public Health Advocacy Institute.




Copyright 2003-2014 Public Health Advocacy Institute (PHAI) at
Northeastern University School of Law