In an op-ed published today in the Boston Globe, a day in which FDA announced it’s intention to issue regulations to ban menthol cigarettes, PHAI’s executive director and president consider what the next steps in tobacco prevention should be.
Gottlieb and Daynard suggest that:
The FDA should also remove menthol flavored e-cigarettes from the market. If these products, favored by youth, are on the market to help menthol smokers switch to e-cigarettes, this will not be necessary once menthol cigarettes are gone.
Nicotine must be carefully regulated so that cigarettes are no longer addictive. The evidence is that very low nicotine cigarettes will help smokers to quit and will not result in them increasing smoking to compensate.
The nicotine strength in American e-cigarettes is more than double the maximum allowed in Europe. There is no public health rationale for e-cigarettes to be this addictive and the FDA should regulate them accordingly.
Finally, the end of the public health crisis caused by tobacco industry products will only come when we plan to phase out their sales entirely to establish a tobacco-free generation. Brookline, Massachusetts is the first community in the nation to approve this policy and is poised to prohibit sales of any tobacco products to anyone born on or before January 1, 2000. This slow phase-out is a reasonable and permanent way sunset these lethal and addictive products permanently. It should be widely adopted.
The Public Health Advocacy Institute (“PHAI”) is pleased to announce that two tobacco lawsuits tried this month in St. Thomas, V.I., have concluded with verdicts totaling $113.3 million. The cases, Gerald v. R.J. Reynolds Tobacco Co. and Brown v. R.J. Reynolds Tobacco Co., were brought by two deceased smokers who had been hooked on Newport cigarettes as minors.
Rare Double Jury Trials
The cases were tried simultaneously, with both 6-person juries together hearing evidence common to both cases, and each separate jury hearing issues such as medical testimony that was specific to its case. These are the first tobacco cases to be brought in the U.S. Virgin Islands, the first tobacco cases tried together in this way, and among the largest verdicts achieved to date in individual tobacco litigation.
Comment of Tobacco Litigation Expert, Richard Daynard
PHAI President (and Northeastern University law professor) Richard Daynard commented:
“We are delighted that two juries independently concluded that Newport’s original manufacturer, Lorillard, and its successor company R.J. Reynolds,
Ms. Brown as a Teen
sold an unreasonably and unnecessarily dangerous product, marketed it by use of fraud, fraudulent concealment, and conspiring with the other major cigarette producers, and engaged in outrageous conduct with evil motive or in reckless or callous disregard of the rights or safety of others. The juries saw through the defendant’s con game: they addicted these two smokers through deceptive advertising and free samples, made thousands of dollars of profits from their subsequent purchase of Newports, and then tried to blame them for their ‘irresponsible’ decision to keep using these products. The smokers in these two cases were among the more than 20 million Americans who died of cigarette-caused deaths since the first Surgeon General’s Report in 1964.”
Lucien England, the decedent in the Gerald case, began smoking Newport cigarettes as a child, when, as part of a nationwide marketing campaign, free samples of the cigarettes were hung from the doorknobs of the apartment building where he grew up. His death was caused by bladder cancer from smoking Newports.
Patrice Brown, the decedent in the Brown case, began smoking Newport cigarettes as a teenager, influenced by an advertising campaign that promoted Newports as having a “hint of mint,” and died from lung cancer after smoking those menthol cigarettes for decades.
PHAI is a public health research and advocacy non-profit located at Northeastern University School of Law in Boston. www.phaionline.org.
The case was brought by St. Thomas attorney Russell Pate, and tried by attorneys Michael Weisman and Gordon Rhea, with the assistance of PHAI attorney Meredith Lever. Mr. Weisman is Of Counsel with PHAI. With the Brown case, Weisman reprised his 2010 success in the case of the late Marie Evans, in which a Boston jury awarded $71 million in compensatory damages and $81 million in punitive damages against the maker of Newport cigarettes for causing Evans’ premature death from lung cancer. Ian A. McWilliams handled the audio-visual services for plaintiff’s exhibits in the Evans as well as the Virgin Island trials.
Brown v. R.J. Reynolds Tobacco Co. = $70 m compensatory + $12.3 m in punitive damages
Gerald v. R.J. Reynolds Tobacco Co. = $1 m compensatory + $30 m in punitive damages
On Friday, July 28, 2017, U.S. Food and Drug Administration (“FDA”) Commissioner Scott Gottlieb unveiled a revamped approach to tobacco product regulation in an announcement that surprised tobacco companies, investors, and the public health community in equal measure. The goal, as articulated by Gottlieb, will be to regulate products so as to encourage migrating existing consumers from the most lethal combustible tobacco products (i.e., cigarettes) to non-combustible products lower on the continuum of risk. This approach is known as “harm reduction.” The keystone will be to promulgate product standards so that cigarettes deliver insufficient nicotine to users to create or sustain addiction so that current nonsmokers never start and current smokers either quit or switch to non-combustible tobacco product that present a lower health risk.
This idea, while somewhat radical, is not new. It had been a topic of discussion at the American Medical Association in the mid-1990s. Congress gave the FDA regulatory authority over tobacco in 2009 with the Family Smoking Prevention and Tobacco Control Act of 2009 (“Tobacco Control Act”). It prohibited the agency from banning cigarettes or from banning nicotine. The law does, however, explicitly allow for the potential reduction of nicotine in cigarettes to any level above zero. The Public Health Advocacy Institute at Northeastern University School of Law produced a white paper on this approach in 2009 and proposed further research on the policy, but enthusiasm at the agency and the Executive Branch was lacking. Northeastern University Distinguished Professor, Richard A. Daynard, characterized non-addictive cigarettes in the New York Times as one of two important strategies that could end the cycle of addiction, disease, and death from tobacco products.
Research to date, including a $50 million research project funded by the National Institute on Drug Abuse, have produced preliminary results supporting the notion that very low nicotine cigarettes will lead to fewer cigarettes smoked and reduced toxic exposure to consumers. So long as the nicotine levels are very low, compensatory smoking behaviors such as inhaling more deeply and smoking greater numbers of cigarettes do not seem to generally occur. Some of these preliminary results were presented at Northeastern University School of Law in 2014 by a Principal Investigator of the grant, Dorothy Hatsukami, at PHAI’s conference, “Accelerating Tobacco Endgame Strategies in the United States.”
Another important tool that the FDA can use is to issue rules pertaining to the use of flavors in tobacco products. While the Tobacco Control Act banned the use of characterizing flavors other than mint or menthol in cigarettes, concerns around the role of flavors in tobacco initiation have intensified in recent years. “Little cigars,” which closely resemble cigarettes, are available in a range of child-friendly flavors. E-cigarettes, likewise, have been criticized for offering fruit and candy flavors that would seem to appeal to children.
The question of exempting menthol flavored cigarettes from the flavor ban has been extremely controversial. The Tobacco Control Act, it was thought, would not have garnered the votes needed to pass Congress were a menthol cigarette ban included. Rather, the law specified that an expert committee must be convened by FDA to study the issue and issue a report on the health impact of menthol as a characterizing flavor in tobacco products.
The resulting reports concluded that although menthol itself did not contribute to the toxicity of tobacco products, it tended to anesthetize the lungs in a way that facilitates smoking initiation by youth and frustrated cessation efforts. Further, mentholated cigarettes have been historically marketed in a way that targets African Americans. Almost 90% of African American smokers prefer menthol cigarettes, which is the most robust sector of the cigarette industry in the United States. The company that produces the menthol market leader, Newport, was recently acquired by R.J. Reynolds which, in turn, was acquired by British American Tobacco this year. Reportedly, much of the value sought in these acquisitions derived from the Newport brand and the value of menthol cigarettes.
To date, the FDA has taken no action on mentholated tobacco products. Chicago and San Francisco have passed ordinances restricting sales of menthol tobacco products. San Francisco’s ordinance, which passed in July of 2017, is a total ban on all flavored tobacco product sales, including menthol.
The FDA announced that it will soon release three Preliminary Notice of Proposed Rulemakings seeking public and stakeholder comment on: 1) pros and cons of nicotine reduction strategies; 2) role of characterizing flavors, including menthol, in youth initiation and as a means to attract smokers to non-combustible tobacco products with less risk; and 3) potential health risks and use patterns of premium cigars.
Non-combustible products such as electronic nicotine delivery systems including e-cigarettes and emerging “heat-not-burn” products would be likely alternatives to non-addictive cigarettes as would nicotine replacement therapies such as the gum and patch. While this harm reduction approach has many supporters in the public health community, it would have the likely effect of perpetuating the commercialized recreational use of nicotine long into the future.
Since the FDA began regulating tobacco products in 2009, almost every substantive regulatory effort has been met with litigation. This includes 2 lawsuits challenging a host of the law’s provisions; challenges to the legal legitimacy of the report FDA issued about menthol; a successful First Amendment challenge to regulations for graphic cigarette warning labels; and a dozen or so lawsuits challenging the agency’s regulation of e-cigarettes and cigars.
This litany of litigation has, to this point, slowed or partially derailed the agency’s regulatory agenda and has drawn the criticism of many in the public health community. The FDA’s announcement marks a new and more aggressive regulatory vision for tobacco. Many questions remain. Is the scientific evidence base sufficient to justify this new approach? What will be the effect of inevitable legal challenges from manufacturers and smokers? What are the health impact of non-combustible tobacco products to users and non-users? How did the political environment in the Executive Branch change to allow for this new strategy to emerge and will it last?
With so many questions remaining and so many potential rules to enact, the timeline for the FDA to implement its new regulatory approach is uncertain. Based on past experience, it would be reasonable to expect that it may be a decade or more until cigarettes are non-addictive. Until then, there will be an effort by the tobacco industry to attract millions of consumers to new, less dangerous, but still addictive tobacco products.
Author – Public Health Advocacy Institute
As I approached the Greater Richmond Convention Center on the partly cloudy morning of Thursday, May 18, 2017, thoughts of sub-freezing temperatures and snowstorms never entered my mind. But, before the morning gave way to the afternoon, I realized that I had just seen dozens of snowflakes.
As he opened the meeting just before 9:00 A.M., Altria Group Chairman, President and CEO Martin J. Barrington declared that the company had experienced “another outstanding year” in 2016. That was followed by a “solid start” in the first quarter of 2017. He listed four priorities for the company:
Tobacco Harm Reduction;
Supply Chain Responsibility; and
The company’s strategies are:
Maximize income from core tobacco businesses over the long term;
Grow new streams with innovative tobacco products (including MarkTen XL, the “fastest growing e-vapor brand” in the last quarter of 2016); and
Manage diverse income streams and a strong balance sheet to deliver consistent financial performance (citing Altria’s ownership of over 10% of AB InBev and its Ste. Michelle Wine Estates ).
I was able to begin the Question and Answer session of the meeting with the following question:
“You and other executives of Altria Group have often referred to tobacco litigation as an issue that is ‘manageable’ and, therefore, should not be troubling to investors.
Yet, just within the past two months, the following developments have occurred:
On April 6th, the Florida Supreme Court in the R.J. Reynolds Tobacco Co. v. Marotta case ruled that federal law does not preempt Engle Progeny plaintiffs from bringing strict liability and negligence claims against tobacco companies.
On April 12th in the Boatright v. Philip Morris USA, Inc. case, a Florida Appeals Court affirmed a jury award of $35 million against Philip Morris USA, Inc., and reversed the reduction of the award by the trial judge because the smoker was also at fault for his illnesses, ruling that Florida’s comparative fault law does not apply to intentional torts. This increases the company’s exposure to liability.
On April 6th in the Sommers v. Philip Morris case, a Florida state jury awarded $1 million to the widow of a lawyer and real estate developer after finding Philip Morris responsible for his coronary artery diseases and fatal lung cancer.
My question is:do you understand why there are shareholders who believe that the tobacco litigation problem is no longer simply ‘manageable’?”
Mr. Barrington’s response was, while acknowledging these and other recent legal setbacks for Altria, to emphasize that in the larger picture, tobacco lawsuits are still “manageable” in the view of Altria’s management. He admitted that “litigation presents a risk and we devote substantial resources to it.” Mr. Barrington also claimed that the litigation has been “well managed” and that the slope of the numbers of cases “has been coming down.” Regarding Engle, he said that it presents a “complex set of individual cases” and that Altria is “working our way through it.” He complained that the “terms on which those cases are being tried are not particularly fair to the defendants.” He concluded by stating that tobacco litigation is “a complex matter but it is a finite matter.”
Reality Check’s Jonathan Chaffe asked about the growing number of localities across the country that have adopted Age 21 policies – making it illegal to sell or give cigarettes and other tobacco products to people under age 21. Mr. Barrington responded by saying that he prefers to minimum age to be 18 rather than 21. He also raised the potential problem of communities that have passed Age 21 laws being surrounded by other communities that hadn’t, thus encouraging young smokers to travel to a place where the minimum age is still 18. Finally, he opined that it would be better to have this issue dealt with by Congress, rather than by states or localities.
A 15-year-old student from Elmira, New York asked Mr. Barrington what steps Altria is taking “to ensure that specific populations with higher smoking rates based on ethnicity, income, education and mental health are not being profiled by Altria’s advertising?” Altria’s current top executive gave an answer that any number of his predecessors have given over the years. He claimed that the company markets cigarettes “only to adults.”
In response to a question about how Altria plans to respond to the U.S. Department of Housing and Urban Development’s November 2016 policy for smoke-free public housing, Mr. Barrington said that Altria “hasn’t weighed in” on the issue but that, as a general rule, homeowners should decide whether to allow smoking in people’s homes.
A shareholder resolution, sponsored by the Sisters of St. Francis of Philadelphia (see http://osfphila.org/ ), called on the company to “voluntarily commit itself that, by August 15, 2017, it will not allow any images of its logo or products be placed anywhere outside any store, in store windows or anywhere else inside any store selling its tobacco products and will stop incentives to any retailer for such placements.” The proposal noted that “people of low socioeconomic status have higher rates of cigarette smoking than the general population” and that a city of Philadelphia analysis of licenses found that lower income zip codes “had two-thirds more tobacco retailers per capita than higher-income zip codes and three-quarters more within 1000 feet of a school.”
The resolution received a 2.6% YES vote.
Before, during and after the meeting, at least thirty teenagers demonstrated outside the convention center, carrying teal and black balloons to emphasize how young people who begin using a deadly and addictive product become replacement smokers for Altria’s customers who die from smoking-caused diseases. The teenagers, who were accompanied be several adults, were representatives of Reality Check New York ) and No Limits Nebraska.
After the 50-minute meeting had ended, I emerged from the meeting room to learn that the approximately 85 attendees were blocked from exiting from the same doors through which they had entered an hour or so earlier. Instead, everyone had to walk down a long corridor – about the length of a city block – to get to the exit which led to the parking garage.
Why did Altria management take this action, which had never been done before in my experience of having attended annual shareholder meetings for more than 20 years?
If it hadn’t done so, shareholders would have seen dozens of teenagers wearing T-shirts with the message “People Over Profit.” They would have seen the balloons that represent both tobacco’s death toll and replacement toll. They would have heard the chants that describe the lies used by tobacco companies to help maximize profit levels at the expense of the health and the lives of the public.
In May 2016, the Urban Dictionary defined “snowflake” as “an overly sensitive person, incapable of dealing with any opinions that differ from their own.” The key message of this year’s Altria Group shareholders meeting was not that 2016 was an “outstanding” year for the company. It was that Altria’s management is afraid of opinions that differ from their own, especially when those opinions are espoused by young people who have the courage to speak truth to power – up close and personal.
PHAI, on behalf of the Tobacco Free Living Community of Practice (a statewide coalition organized through the Massachusetts Dept. of Public Health), submitted recommendations to the Massachusetts Department of Housing and Community Development (“MDHCD”) for its 2017 Qualified Allocation Draft Plan and Low Income Housing Tax Credit Program.
MDHCD implements the federal Law Income Housing Tax Credit and helps encourage the development of private low-income housing. Its 2017 Qualified Allocation Draft Plan, which includes a competitive scoring system for applicants seeking to build low-income housing and claim tax credits, provides points to applicants that promote clean indoor air.
Chris Banthin, PHAI’s Director of its Tobacco Control Resource Center, suggests in Comments submitted in December 23, 2016, that applicants should be required to include smoke-free policies for all indoor common areas and living units or, alternatively, that points be awarded to applicants that agree to implement such policies.
The following organizations signed on to the comments to lend their support:
• American Lung Association, Northeast
• Asthma & Allergy Foundation of America, New England Chapter
• Beacon Communities LLC
• Boston Alliance for Community Health
• Boston Children’s Hospital
• Boston Public Health Commission
• Charlestown Coalition
• Codman Square Health Center
• Codman Square Neighborhood Council
• Dorchester Bay EDC
• East Boston Neighborhood Health Center
• Fenway CDC
• Harbor Health Services, Inc.
• Health Resources in Action
• Healthy Weight Initiative, HSPH
• Massachusetts Environmental Health Association
• MGH Center for Community Health Improvement
• New England Regional Council of the National Association of the Housing and Redevelopment Officials
• Peabody Properties, Inc.
• Public Health Advocacy Institute, Inc.
• Vaughan W. Rees, PhD, Director, Center for Global Tobacco Control, Department of Social and Behavioral Sciences, Harvard T.H. Chan School of Public Health
• Resilient Sisterhood Project
• South Boston Substance Abuse Prevention Collaborative
• South End Community Health Center
• Tobacco Free Mass
On August 8, 2016, new regulations by the FDA went into effect that have a profound impact on a major segment of the electronic cigarette industry: vape shops. The shops that mix flavors for vaping products are now considered to be manufacturers and subject to the same requirements as manufactures owned by the companies that make Marlboros, Camels, and Newports.
The new rules will require each and every flavor variation of electronic cigarettes to be approved by the FDA as a new tobacco product. The cost associated with each application is estimated by the agency to average over $300,000. Vape shops had typically created many dozens of varieties of “e-juice” every month and, under the new rules, the revenues from these flavor varieties would account for only a small fraction of the cost for submitting new tobacco product applications. This has led some vape shops to close their doors.
As soon as Altria Group, Inc. Chairman, CEO and President Martin J. Barrington opened the 2016 Annual Shareholders Meeting, he boasted that 2015 had been “another terrific year.” The “excellent business results” included dividends increasing by 8.7% (to $4.2 billion) and a shareholder return of more than 23%. Marlboro, with 44% of the retail share in the United States, is larger than the next 10 brands combined. But, just as at the Reynolds American Inc. meeting two weeks earlier, the tobacco company executive made no mention of other numbers – numbers that tally the toll in death and disease that is directly caused by the intended use of the company’s main product.
By distributing to shareholders a colorful, glossy handout summarizing the company’s 2015 business accomplishments, Mr. Barrington significantly cut back on the length of his oral business report compared to previous annual meetings. After that report and some perfunctory votes on election of the board of directors and the accounting firm were completed, the meeting’s agenda quickly came to the question and answer session.
After an initial question from a company-friendly stock analyst, I asked the following question of Mr. Barrington:
“Just within the past two months, the following developments have occurred.
“On March 17, the Florida Supreme Court ruled in the Soffercase that the widow of a smoker who died of lung cancer can seek punitive damages against a tobacco company on strict liability and negligence claims.
“On March 24, the Florida Supreme Court in the Ciccone case ruled that a smoker did not need an official diagnosis before the cutoff date for membership in the original Engle class.
“On April 25, the Connecticut Supreme Court in the Izzarelli case ruled that the “good tobacco” language of the Restatement 2nd of Torts does not shield tobacco companies from product liability lawsuits. (See news coverage) This is similar to a ruling in Massachusetts
“And, earlier this week on May 16, the U.S. Supreme Court in the Schwarz case declined Philip Morris USA’s request to review an Oregon jury’s $25 million punitive damages award to a widower whose wife died of lung cancer.
“Why shouldn’t Altria Group’s shareholders and investors be very concerned about these negative litigation developments for the company?”
Mr. Barrington’s response echoed the traditional party line from the top executives of the major cigarette companies in the United States: tobacco litigation is a “well-managed risk” that should not alarm shareholders and investors. He commended the quality of the work of the company’s lawyers, including Denise Keane, Altria’s General Counsel.
A representative of the AFL-CIO’s Farm Labor Organizing Committee (FLOC) cited “poverty wages and squalid housing” on tobacco farms and called on Altria to crack down on the abuses of farm workers in tobacco fields. He also specifically mentioned Jackson Farms in North Carolina, where seven workers who had filed a wage theft lawsuit were subsequently blacklisted. Mr. Barrington responded by confirming that Altria does not use Jackson Farms to get any of its tobacco.
Amber Updike, a 14-year-old member of New York-based Reality Check , mentioned Altria’s having spent $9 billion annually in marketing to youth in the United States. Mr. Barrington responded by denying that Altria targets youth and referred her to the company’s websites. He also claimed that Altria “led the effort to get cigarettes off the [store] counter.”
Cathy Rowan, representing Trinity Health, spoke in favor of a resolution calling on Altria to “undertake a thorough analysis, engaging chemical and pharmacological experts as needed, of all the harmful liquids, additives and chemicals and their potential health consequences when each brand of our tobacco products is used as intended by consumers and report the results of the analysis on the Company’s website.” Ms. Rowan noted that there is no clarity regarding the ingredients in Altria’s cigarettes and e-cigarettes and that compliance with the U.S. Food and Drug Administration’s (FDA) deeming regulations (which were adopted on May 5, 2016) could take up to three years.
Altria opposed the resolution, preferring to leave the matter to the FDA. The resolution was defeated with 93% of the shares having been voted “No.”
Sweda with Reality Check NY
The second shareholder resolution, which was sponsored by the national AFL-CIO, called on Altria to follow the lead of Pepsico and follow the United Nations’ Guiding Principles on Business and Human Rights. A company would have the following: a) A policy commitment to meet their responsibility to respect human rights; b) A human rights due diligence process to identify, prevent, mitigate and account for how they address their impacts on human rights; and c) Processes to enable the remediation of any adverse human rights impacts they cause or to which they contribute.”
Since agricultural workers are excluded from the National Labor Relations Act, it is important to have non-judicial grievance mechanisms to remedy human rights violations. Altria opposed the resolution, arguing that its “responsible supply chain management practices appropriately address the objectives of this proposal.” This resolution was defeated with 94.1% of the shares having been voted “No.”
After the 45-minute meeting concluded, I went outside to meet some of the 40 youth members of Reality Check who had protested against Altria’s targeting of youth. [Insert photo] The loud protests were heard inside the Richmond Convention Center (especially as attendees came to and from the restrooms) before, during and after the shareholders meeting.
It was a distinct pleasure to meet with Gretchen Galley, Ken Dahlgren and Jon Chaffee, as well as the youth – about 40 in number – who sent the clear message to Altria that “We have seen enough!”
On May 23, 2016, the widow and children of baseball great Tony Gwynn filed a wrongful death lawsuit against Altria Group alleging that the manufacturers of Skoal smokeless tobacco’s negligence, fraud, defective design, and failure-to-warn caused the death of the Hall of Famer in 2014.
Richard Daynard, PHAI’s president and University Distinguished Professor of Law at Northeastern University, discussed the case in the New York Times and also on ESPN along with Neil Romano of the National Spit Tobacco Education project.
When Reynolds American International (RAI) President and CEO Susan M. Cameron told the company’s 2016 annual shareholders meeting that it is “always a pleasure to report good news,” this shareholder was reminded of a similar message: “Alive with Pleasure.” That ubiquitous advertising slogan for Newport cigarettes – which RAI acquired
Cameron with a “digital vapor cigarette”
in 2015 when it purchased Lorillard Tobacco Company – emphasized the short-term, pleasurable qualities of the deadliest consumer product while ignoring the long-term consequences of using that product.
Ms. Cameron listed the examples of “good news” from 2015: shareholder return of 49%; an increase of 7.5% in dividends; a 2 for 1 stock split. Integration with the Newport brand has “done well,” she said. Vuse, RAI’s leading brand of “digital vapor cigarettes”, was the most successful new product in convenience stores.
There was no mention of the enormity of cigarettes’ 2015 death toll during the course of the 80-minute shareholders meeting. Nor was there any mention of litigation against R.J. Reynolds Tobacco Co. until Agenda Item #10, the Question & Answer session. My question to RAI Chairman of the Board Thomas C. Wajnert was as follows:
“Just within the past two months, the following developments have occurred:
“On March 17, the Florida Supreme Court ruled in the Soffer case that the widow of a smoker who died of lung cancer can seek punitive damages against RJR on strict liability and negligence claims.
“On March 24, the Florida Supreme Court in the Ciccone case ruled that a smoker did not need an official diagnosis before the cutoff date for membership in the original Engle class.
“On April 21 and 22, a Florida jury returned verdicts in the Turner case totaling $13 million for the children of a heavy smoker who died of lung cancer, finding that RJR hid the dangers of cigarettes from her until she was hopelessly addicted.
“And just last week, on April 25, the Connecticut Supreme Court in the Izzarelli case ruled that the “good tobacco” language of the Restatement 2nd of Torts does not shield tobacco companies from product liability lawsuits.(see news coverage) This is similar to a ruling in Massachusetts.
“Why shouldn’t RAI shareholders and investors be very concerned about these negative litigation developments for the company?”
For a response, Mr. Wajnert turned to Mark Holton, RAI’s executive vice president, and general counsel. While acknowledging the litigation developments I had just cited, Mr. Holton advised that shareholders and investors should consider the company’s overal
Edward L. Sweda, Jr.
l litigation strategy, that has been used for many years, rather than a string of setbacks that had occurred since mid-March. He also mentioned that there had been some recent defense verdicts during that time span and, as to the Izzarelli case, he noted that RJR still had other legal grounds for its appeal of the jury’s $28 million verdict. On that case, Mr. Holton congratulated me on the ruling by the Connecticut Supreme Court and noted that I had submitted anamicus curiae brief for the Public Health Advocacy Institute (PHAI) on behalf of Ms. Izzarelli.
The day before the RAI Annual Shareholders Meeting, the Associated Press reported that several growers who sell tobacco to R.J. Reynolds Tobacco Co. had children under the age of 13 working in their fields, despite RAI’s pledge to prohibit the hiring of children of that age. A news release by the Farmworkers Labor Organizing Committee (FLOC) commented that the “presence of child labor, which the company has denied for years, confirms what the farmworkers’ union, FLOC, has been telling the company since 2007: the tobacco industry is guilty of turning a blind eye to child labor, dangerous working conditions, and many other abuses for far too long.” That news was consistent with the findings of a December 2015 report by Human Rights Watch, entitled, “Teens of the Tobacco Fields: Child Labor in Unites States Tobacco Farming.”
During the question & answer session, several speakers raised the issue of working conditions for farm workers. Hillary Laslo, a FLOC member from Toledo, OH, spoke of abusive conditions on the farm and the fear of retaliation. Julie Taylor, the ex-Director of the National Farm Worker Ministry, visited farm labor camps and saw “terrible housing” conditions. A 20-year-old FLOC member described many problems working in the fields, including not getting necessary breaks while working in the fields, especially on brutally hot days.
Fred Romero, a 14-year-old high school freshman who had worked in the fields for the last 2 to 3 years, described how he had gotten ripped off, being paid even less than the $7.25 per hour minimum wage. He noted how his mother struggles hard to pay the family’s bills; he asked Mr. Wajnert whether RAI will sign an agreement to get a livable wage paid for those who work on farms that provide the tobacco for RAI. Mr. Wajnert answered that the company would not do so.
After the meeting concluded at 10:20 A.M., more than 100 FLOC supported demonstrated in the rain against RAI for its refusal to do more to improve working conditions for farm workers and to end child labor in tobacco fields.
Just a week after the meeting, RAI suffered yet another courtroom loss when a Florida jury in the Dion case returned a $12 million verdict to the widower of a woman who died of lung cancer after smoking for decades.
The Public Health Advocacy Institute submitted comments to a proposed rule by the U.S. Department of Housing and Urban Development (“HUD”) to make its public housing smoke-free. The proposed rule would affect 1.1 million households, but leave 3.4 million other HUD-funded households unprotected. These include the agency’s tenant-based and project-based rental assistance.
PHAI argues that there is are several ways that HUD could expand the proposed protections:
HUD maintains significant control over the development and operation of many mix financed properties, in part, through the Housing Assistance Payment Contracts. HUD has a legal right to change these contracts during the renewal process. Going smoke-free could simply become part of the eligibility requirements, for example, under the all HAP contract renewals going forward. Just like it currently prohibits marijuana use in all the housing it finances, HUD could require a smoke-free environment, too.
There is widespread support for smoke-free policies among owners and property management companies of mix-financed, affordable properties. In Massachusetts, some of the leading management companies of mixed financed affordable properties have made many, and in some cases all, of their properties smoke-free. Examples include Beacon Communities, Peabody Properties, and Corcoran Management.
Surveys show that residents who are eligible for affordable housing prefer a smoke-free building, despite the high smoking rates in affordable housing.
Smoke-free rules reduce maintenance costs, which would benefit the private owners and funders of affordable housing.
The health and safety risk to residents exposed to drifting secondhand smoke is the same regardless of whether the resident lives in public housing or another type of affordable housing.
Requiring smoke-free buildings for the use of tenant-based assistance would cause approximately 700,000 landlords to go smoke-free. This change would benefit all residents living at these properties, not just the voucher holders.