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Archive for the ‘Tobacco’ Category

PHAI Files Amicus Brief Comparing Gambling and Tobacco Industries

Wednesday, April 16th, 2014

The Public Health Advocacy Institute has filed an amicus curiae brief in an appeal pending before the Massachusetts Supreme Judicial Court.  The Plaintiff/Appellants are seeking to reverse a decision of the attorney general and get a question certified for inclusion on the 2014 ballot to repeal a law legalizing casino gambling in Massachusetts.  The case is Steven P. Abdow et al., v. Attorney General, et al., No. SJC-11641.

Legalized casino gambling causes devastating effects on the public’s health, including not only the gambler but also their families, neighbors, communities and others with whom they interact. Massachusetts voters should not be denied the opportunity to be heard directly on the question of whether to invite a predatory and toxic industry to do business in the Commonwealth.

The harm caused by the tobacco industry’s products has been the archetype of a commercial threat to public health, and in considering the introduction of gambling industry casinos into Massachusetts, much can be learned from the object lesson of considering the tobacco industry as a disease vector. The predatory gambling industry shares much in common with the tobacco industry.

Some examples of the similarities are:

Both the tobacco and casino industries profit from preying upon society’s most vulnerable members, acting as disease vectors which adversely affect the physical, emotional and social health of the individual users and the communities where use of the products is prevalent.

The brief declares that the voters of the Commonwealth should be allowed to act on their own behalf in expressing an opinion of this type of predatory behavior. The power of the citizen ballot initiative is the ultimate in personal responsibility, agency and self-determination. Therefore, PHAI asks the court to compel the attorney general to certify the Plaintiffs’/Appellants’ petition and allow the repeal measure to be included on the 2014 ballot.

The full brief can be downloaded here.



PHAI’s Gottlieb Calls Out FDA and White House for Failing to Aggressively Implement the Family Smoking Prevention and Tobacco Control Act

Monday, April 14th, 2014

In an editorial published in the May, 2014 issue of the journal, Tobacco Control, PHAI’s Executive Director, Mark Gottlieb, calls the FDA’s approach to implementation of the Family Smoking Prevention and Tobacco Control Act, “Overcautious,” and urges the agency and the White House to take a much more aggressive approach to saving lives.

The summary of the editorial, entitled “Overcautious FDA has Lost its Way,” states:

Five years after the passage of the Family Smoking Prevention and Tobacco Control Act, little progress has been made in the effort to regulate the US tobacco industry and advance the public health goals of tobacco control. Legal challenges by the tobacco industry, and evidence of political interference from the White House have resulted in the US Food and Drug Administration’s (FDA) overcautious approach toward advancing a meaningful regulatory agenda. While the White House bears final responsibility, it is incumbent upon the FDA and its Center for Tobacco Products to become more aggressive and seize the extraordinary opportunity to save lives that the Family Smoking Prevention and Tobacco Control Act has created.

Despite the capabilities of the FDA’s Center for Tobacco Products and its director, Mitchell Zeller, who directed the FDA’s tobacco efforts in the 1990s under commissioner David Kessler, progress in meaningfully regulating tobacco products is moving at a glacial pace. Predictably, the tobacco industry is utilizing its full legal arsenal to challenge and delay FDA’s efforts.   It is  becoming apparent that the White House is also responsible for the FDA’s inaction through delays caused by its Office of Management and Budget.

Gottlieb believes that the agency should be: (1) eliminating menthol; (2) regulating nicotine levels to reduce dramatically abuse liability and toxic exposure; (3) implementing arresting and effective graphic warnings; (4) facilitating an increase of the national minimum tobacco sales age to 21; and (5) responsibly controlling new tobacco products’ entry into the market. This is simply not happening.

Gottlieb suggests that because litigation by the tobacco industry to challenge regulatory action is inevitable, the best strategy is for the FDA to use the best available evidence now and rollout the regulatory agenda as fast as the law will allow.  Delay only serves to benefit the industry and, consequently, increase the morbidity and mortality that the industry’s products cause in the United States.

Another suggestion by Gottlieb is for FDA to consider how Sharon Eubanks, lead attorney for the U.S. Department of Justice, handled similar legal and political challenges when litigating the racketeering case, U.S. v. Philip Morris.

The editorial concludes by noting that, “[t]here exists no better public health opportunity of any kind than this one, now in the hands of the FDA. They should run with it, not from it.”

 



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 https://phaionline.org. If you would like to be notified when more information is available, please send an e-mail to moreinfo@phaionline.org.



Surgeon General Report Focuses 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, Executive Director 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., PHAI’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 PHAI.



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 urges FDA to prohibit the sale and distribution of menthol cigarettes

Friday, November 22nd, 2013

On July 24, 2013, the U.S. Food and Drug Administration issued an advance notice of proposed rulemaking (ANPRM) seeking comments from the public and other stakeholders on the potential regulation of menthol in cigarettes.   Gottlieb and Daynard from PHAI submitted comments today on Docket No. FDA-2013-N-0521 calling on the Secretary of Health and Human Services to promulgate regulations to pursuant to her authority under sec. 906 of the Family Smoking Prevention and Tobacco Control Act to  prohibit cigarette manufacturers from selling or distributing cigarettes that are:

a) Branded as a menthol product;
b) Marketed as a successor to a previously marketed menthol product; or
c) Otherwise likely to be perceived as a menthol product or menthol product successor in the marketplace.

The FDA’s staff issued a peer-reviewed comprehensive scientific report as did the agency’s Tobacco Products Scientific Advisory Committee in 2011.  We noted that, “these findings clearly establish an evidence base that justifies regulatory action by the Secretary to stop the harm to public health caused by permitting mentholated cigarettes to remain on the market.  To put it simply, the most acute harm appears to be that mentholated cigarettes facilitate smoking initiation by youth, frustrate quit attempts by addicted smokers, and include brands that have particularly targeted African Americans in a way that amplifies health disparities.”

Despite a years-long process, we are cautiously optimistic that FDA will move forward with regulations such as those we recommend in the near future.

View our comments here.

 



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

If you someone in your family was recently harmed by smoking, please see our cigarette lawsuit information page.


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 Public Health Advocacy Institute, 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 Institute 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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US Supreme Court deals devastating blow to the cigarette industry and settlement value of nearly 8,000 pending Engle cases rises dramatically

Monday, October 7th, 2013

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For seven years, cigarette companies have repeatedly claimed that the Florida Supreme Court’s decision in Engle v. Liggett, which relieved about 8,000 Florida cases of the need to prove general liability or that cigarette smoking causes disease, violated the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution. They repeatedly represented to industry analysts and shareholders that these key procedural advantages, which have helped plaintiffs in the trials held to date obtain verdicts against the cigarette manufacturers in two out of every three cases, ultimately would be wiped out as unconstitutional.

The original ruling was based on the long-established notion of res judicata, meaning that the matter had already been judged. The issues that the defendants wanted to re-litigate were already determined in a year-long class action trial in 1999.

Twice now, the cigarette companies have failed to get these important procedural advantages overturned by the U.S. Supreme Court and it appear that, for all intents and purposes, the industry’s uphill legal battle has just become considerably steeper in Florida.

Last November, the U.S. Supreme Court declined to review an appeal of another Engle progeny case, Clay v. RJ Reynolds Tobacco, which raised similar Due Process issues.

Today, about seven months after the Florida Supreme Court issued a decision upholding its 2006 Engle ruling in Philip Morris v. Douglas, the industry was again rebuffed by the nation’s highest court and may have exhausted ways of arguing that its Constitutional rights to due process have been denied in Florida.

Mark Gottlieb, Director of the Public Health Advocacy Institute, at Northeastern University School of Law in Boston noted that, “the cigarette companies have two choices left in Florida: either spend the next century continuing to lose around 65-70% of its cases or working to fairly settle them and bring some closure to those 8,000 or so victims who have been waiting more than 15 years for their day in court.”

Public Health Advocacy Institute’s Senior Attorney, Ed Sweda, said,”the tobacco companies’ long-repeated claim that the procedure for trying Engle Progeny cases violates their Due Process rights is now legally dead.  The rights of the victims of these companies have been vindicated.”



PHAI publishes new resource: http://SmokeLitigation.org

Wednesday, August 14th, 2013

PHAI has just published a new website consisting of searchable summaries of over 600 secondhand smoke lawsuits based in the United States.  The cases stretch back to the 1970s and the data was most recently updated in July, 2013.  We will continue to update the site and add new cases as well as indicate developments in existing cases.

The project is the work of our Senior Attorney Edward Sweda, who began compiling “Ed’s List” about 25 years ago.  The list has been published in the Tobacco Products Litigation Reporter and used by many tobacco control organizations and individuals seeking legal redress to smoke exposure problems.  The project would not have made it to the web but for the efforts of our summer intern, Rebecca Leff, who copied and formatted a 133 page single spaced document to create 628 case entries.

The site is searchable by type of case, e.g., custody disputes, real property, smoking in prisons, or litigation against tobacco companies, as well as the state where the action was filed.

Visit SmokeLitigation.org




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