Tobacco

• Author: Jeffrey Lehman, Shirelle Phelps

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For centuries the leaves of the tobacco plant have been used for making smoking tobacco and chewing tobacco. Tobacco contains small amounts of nicotine, a stimulant that acts on the heart and other organs and the nervous system when tobacco is inhaled, ingested, or absorbed. Nicotine's effect on the nervous system causes people to become addicted to it, and the stimulating effects make smoking and chewing tobacco pleasurable. Concentrated amounts of nicotine are poisonous, however. Although the use of tobacco was condemned on occasion in the past, not until the latter half of the twentieth century were concerted efforts made to curb tobacco use in the United States.

History

Before the arrival of Europeans in America, Native Americans were growing and harvesting tobacco to be smoked in pipes. Europeans exploring America learned of this practice and took tobacco seeds back to Europe where tobacco was grown and used as a medicine to help people relax. European physicians believed that tobacco should be used only for medicinal purposes. Commercial production of tobacco began in the colony of Virginia in the early seventeenth century where it soon became an important crop. The expansion of tobacco farming, especially in the southern colonies, contributed to the demand for and practice of SLAVERY in America. Most tobacco grown in the American colonies was shipped to Europe until the Revolutionary War, when manufacturers began using their crops to produce chewing and smoking tobacco.

The use of tobacco for other than medicinal purposes was controversial: the Puritans in America believed that tobacco was a dangerous narcotic. Nevertheless, chewing and smoking tobacco became increasingly popular. Cigars were first manufactured in the United States in the early nineteenth century. Hand-rolled cigarettes became popular in the mid-nineteenth century, and by the 1880s, a cigarette-making machine had been invented. In the twentieth century tobacco use, especially cigarette smoking, continued to expand in the United States.

By the 1960s, however, scientists had confirmed that smoking could cause lung cancer, heart disease, and other illnesses. Some cigarette manufacturers reacted to these findings by reducing the levels of nicotine and tar in their cigarettes, but the medical community established that these measures did not eliminate the health risks of smoking. Subsequently, extensive research linked cigarette smoking and tobacco chewing to many serious illnesses.

In 2001, the American Lung Association estimated that over 400,000 deaths per year in the United States were directly attributable to smoking, which resulted in HEALTH CARE costs

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Cipollone v Liggett Group, Inc

Cipollone v. Liggett Group, Inc., 693 F. Supp. 208 (D.N.J. 1988), aff'd in part, rev'd in part, 893 F.2d 541 (3d Cir. [N.J.] 1990), cert. granted, 499 U.S. 935, 111 S. Ct. 1386, 113 L. Ed. 2d 443 (1991), aff'd in part, rev'd in part, 505 U.S. 504, 112 S. Ct. 2608, 120 L. Ed. 2d 407 (1992), was the first case in which a former smoker recovered monetary damages against the U.S. tobacco industry. It is also considered a landmark tobacco case because of the legal precedent it established.

Rose Cipollone smoked cigarettes manufactured by defendant Lorillard for forty years. She started smoking at an early age because she thought it was the cool and grown-up thing to do and soon found that she could not stop the habit. Cipollone developed lung cancer, requiring the removal of her right lung. She died before her case went to trial, but her husband pursued her claims on her behalf.

Cipollone brought fourteen claims against Liggett Group, Inc., Philip Morris, Inc., and Lorillard, including STRICT LIABILITY, NEGLIGENCE, breach of WARRANTY, intentional TORT, and conspiracy. The intentional tort claims included the allegation that the tobacco companies had fraudulently misrepresented that smoking was safe through their advertising and conspired to keep the public from learning about the SCIENTIFIC EVIDENCE that clearly demonstrated the health hazards of smoking.

The tobacco companies argued that Rose Cipollone knowingly chose to smoke and therefore accepted all of the dangers and health consequences associated with it. On the other hand, the tobacco companies vehemently maintained that there is no medical or scientific basis to show that smoking is linked to cancer or other diseases.

The Cipollonecase lasted ten years and included the filing of one hundred motions, four INTERLOCUTORY appeals, four months of trial, an appeal from the jury verdict, two petitions of certiorari to the U.S. Supreme Court, and argument and then reargument before the Court. Although the jury in the first trial awarded the plaintiff $400,000 in damages, the verdict was ultimately overturned on appeal due to technical mistakes, and a retrial was ordered. By that time, the three legal firms representing the plaintiff had spent collectively more than $6.2 million on the case and could not afford to continue. In contrast, the defendants spent $40 million and never had to pay one cent to the Cipollones.

This case made history at the pretrial stage because the court ordered the tobacco industry to release thousands of pages of confidential internal documents that the plaintiff needed to prove that the tobacco industry conspired to prevent the public from being informed of the health hazards of smoking (649 F. Supp. 664). The court also held that, because of the enormous public interest in these documents, they could be released to third parties and used in other related cases (113 F.R.D. 86 [D.N.J. 1986]; 822 F.2d 335 [3d Cir. 1987], cert. denied, 479 U.S. 1043, 107 S. Ct. 907, 93 L. Ed. 2d 857 [1987]). However, the defendants were still able to protect the most damaging documents by asserting the ATTORNEY-CLIENT PRIVILEGE and the work product doctrine (140 F.R.D. 684). Without those damaging documents, the jury rejected the plaintiff's theories of conspiracy or MISREPRESENTATION, but did find in her favor on the claim of breach of the express warranty that cigarettes were safe.

Cipolloneis also the definitive case regarding the PREEMPTION of state tort claims by the Federal Cigarette Labeling and Advertising Act (FCLAA) (79 Stat. 282). The Supreme Court held that the FCLAA preempts state law damage claims that are based on a cigarette manufacturer's failure to warn of the health risks of smoking and its neutralization of the federally mandated warnings through advertising techniques, to the extent that those claims rely on omissions or inclusions in the manufacturer's advertisements or promotions (505 U.S. 504, 112 S. Ct. 2608, 120 L. Ed. 2d 407 [1992]). However, the Supreme Court also held that the FCLAA does not preempt claims that are based on strict liability, negligent design, express warranty, intentional FRAUD and misrepresentation, or conspiracy.

FURTHER READINGS

Bajalia, Mark. 1993. "The Supreme Court Renders Its Decision: Federal Preemption, the Cigarette Act and Cipollone." National Trial Lawyer 5 (May).

Fenswick, C.F. 1993. "Supreme Court Takes Middle Ground in Cigarette Litigation." Tulane Law Review 67 (February).

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of over $90 billion. Tobacco is responsible for more deaths in the United States than car accidents, ACQUIRED IMMUNE DEFICIENCY SYNDROME (AIDS), alcohol, illegal drugs, homicides, suicides, and fires combined.

Medical research has not only proven that smoking is injurious to the health of the smoker, but it has also established that nonsmokers can be harmed by inhaling the cigarette smoke of others. This type of smoke is called secondhand smoke, passive smoke, involuntary smoke, or environmental tobacco smoke (ETS). In 1993, the ENVIRONMENTAL PROTECTION AGENCY(EPA) classified ETS as a known human (Group A) carcinogen because it causes lung cancer in adult nonsmokers and impairs the respiratory and cardiovascular health of nonsmoking children. ETS, which is the third leading preventable cause of death in the United States, contains the same carcinogenic compounds as are found in the smoke inhaled by smokers.

As these research findings have appeared, concern over tobacco's effect on health has played an important role in encouraging government regulation of tobacco. At the same time, however, the popularity of tobacco use has resulted in considerable political and financial strength for the tobacco industry. By the 1990s tobacco had become the seventh largest cash crop in the United States, and tobacco growers and manufacturers were realizing $47 billion annually. With such revenues available, the tobacco industry has been able to exert significant influence over tobacco regulation. In a report released by the Campaign for Tobacco-Free Kids, the American Heart Association, and the American Lung Association, the tobacco industry contributed more than $3 million in "soft money" funds to political candidates and political committees, in 2001. Because the industry is also central to the economies of many tobacco-producing states, members of Congress from those states have opposed restrictions on tobacco companies.

Despite the tobacco companies' efforts, the industry is subject to extensive federal and state regulation. Among the federal agencies with minor regulatory interests in tobacco and tobacco products are the BUREAU OF ALCOHOL, TOBACCO, FIREARMS, AND EXPLOSIVES, the Tax and Trade Bureau, the HEALTH AND HUMAN SERVICES DEPARTMENT, the Agriculture Department, and the INTERNAL REVENUE SERVICE. Federal agencies...