Supreme Court Justice

By now you probably already know the Supreme Court granted US smokers the right to sue tobacco companies in State Courts over alleged deceptive marketing practices around “light” cigarettes. On the face of it this 5-4 decision was expected to rule on the firmly established precedent of pre-emption (that Federal regulations trump States) – but didn’t by one vote. Tobacco Companies put a brave face on the decision saying they will fight in State Courts and do not expect to lose.

If you were really paying attention you would have also noticed the FTC distanced itself from the “light” argument just prior to Thanksgiving by announcing the FTC smoking method flawed and misleading. One can’t help but notice the coincidence of timing in these two events.

The argument boils down to this. The public health community states smoking light(er) cigarettes is as harmful as full-flavor cigarettes and moreover if you migrate from full-flavor to lighter cigarettes you compensate and still obtain the same “dosage.”

Assuming for a moment this is reasonable, compensatory smoking can only apply to smokers who migrated to lighter products. It may not apply in every case and certainly does not apply in cases where a smoker starts smoking only light cigarettes.

The ‘light” argument falls to pieces in several areas.

First it was demonstrated in the original US and UK epidemiological studies that there was a link to lung cancer and smoking and moreover the more you smoked the greater the link. Then doesn’t the converse apply? If so, lower tar cigarettes, while not necessarily harm free, are certainly a step in the right direction and to deprive smokers of this option is detrimental to the public health and misleading.

The FTC deserves some blame / credit for the confusion. There are no FTC regulations, standards or even a definition for what constitutes a “light,” “ultra-light,” or “full-flavor” cigarette. There is no advertising enforcement for cigarette tar categories. And some brands exist where the tar delivery for light and ultra-lights overlap. The FTC has seen the testing data for years and it did nothing except recently wash its hands of the whole affair. Good job.

9 comments ↓

#1 Smoking Joe Camel on 01.06.09 at 2:35 AM

I’m wondering how one (a consumer) would make the claim that they smoked more light cigarettes than full flavor after they changed over to lights?

#2 Bill Godshall on 01.06.09 at 1:40 PM

As one who (for the past decade) encouraged and assisted plaintiffs attorneys to file class action lawsuits in state courts against cigarette manufacturers for deceiving smokers into believing that so-called light, ultralight and low-tar cigarettes are less hazardous than other cigarettes, I’ve also criticized the FTC for encouraging/enabling this deception to occur, and urged the FTC to rescind its 1966 guidance statement on tar and nicotine levels http://www.ftc.gov/opa/2008/11/cigarettetesting.shtm

Regardless of the outcome of these lights lawsuits, the end is near for the words “light”, “mild” and “low-tar in cigarette brand names or advertisements, as Judge Kessler’s verdict in the DOJ cigarette lawsuit requires the removal of these terms, as does the FDA tobacco legislation.

Besides indicating that the federal excise tax on cigarettes is likely to be increased to $1/pack later this month (which is likely to reduce nationwide cigarette consumption by 7%-8%), today’s NY Times confirms that Congress is likely to enact the PM/CTFK/Waxman?Kennedy FDA tobacco legislation this session (which hopefully will be amended to include some harm reduction amendments to benefit public health).

http://www.nytimes.com/2009/01/0…=1& ref=business

An article from Sunday’s Philly Inquirer indicates that former Waxman tobacco staffer Josh Sharfstein (who advocated and defended the PM/CTFK FDA tobacco legislative deal from 2004-2007 before he became Baltimore’s Health Commissioner, where he advocated a regulation to require multiple cigars per package) is being considered for FDA Commissioner.

http://www.philly.com/philly/bus…s/ 37053624.html

#3 jancascade on 01.07.09 at 12:23 AM

Bill it really sounds as if you hate big tobacco. So do I and I wish they would fold up their tent and move to China. I really don’t understand why they keep doing business here where they are sued and villified at every level.

PM & RJR move out of the country, there must be plenty of business elsewhere.

#4 EX WS on 01.07.09 at 12:32 AM

I recall a day in the past when one top ranking evil tobacco ex turned to the other and said let’s just move all our business out of here. I dont get why this Bill guy just picks on tobacco, what about the alcohol business or fast food or junk food industry? How much of a burden does alcohol, lousy food cost the health care system.

#5 EX WS on 01.07.09 at 12:35 AM

Hey anti smoke Bill guy – I wanna pose to you a question. If a tobacco company legitimately developed a cigarette that was safe how do you propose that it be taxed? Would you still tax it out of extinction?

#6 Bill Godshall on 01.07.09 at 1:32 PM

Attempting to equate a modest cigarette tax to prohibition is absurd, and not helpful to rationale discussion. Besides, cigarette tax rates in the US are among the lowest in the developed world.

During the past fifty five years, cigarette companies and health advocacy groups have spent lots of money and effort attempting to design/manufacture a less hazardous cigarette, all to no avail.

But all of those failed efforts were very successful at duping most smokers (and nonsmokers) into believing that filtered cigarettes, and so-called low-tar, low-nicotine , light, ultralight, mild, additive-free and all-natural cigarettes are less hazardous than other cigarettes.

The only less hazardous alternatives to cigarettes are smokefree tobacco and nicotine products, whose daily use poses about 1% of the morbidity and mortality risks of cigarettes (i.e. cigarettes are 100 times deadlier than smokefree tobacco products).

Unfortanately, public health agencies and most anti smoking/tobacco groups organizations have misled smokers and the public to believe that smokefree tobacco products are just as (if not more) hazardous as cigarettes.

Regarding taxation policy, all cigarettes should be taxed at a much higher rate than smokefree tobacco prducts.

The SCHIP legislation (that was approved twice last session by both House and Senate, but vetoed twice by Bush) is an excellent taxation model, as it would raise the cigarette tax from $.39/pack to $1/pack, but would only raise the tax on smokefree tobacco products from $.04/can to $.11/can.

I expect the SCHIP legislation to encourage even more cigarette smokers to experiment with, substitute, and switch to less hazardous and less expensive smokefree tobacco products, which is a win, win for public health and for smokefree tobacco manufacturers.

#7 jancascade on 01.08.09 at 6:21 PM

If you are on the receiving end of the excessive and punitive taxation then an increase is too much. If you are on the receiving end of a big fat paycheck from Tobacco Control, then no increase is too much.

#8 Robert Kemp on 01.14.09 at 5:38 AM

Fire Safe Cigarettes Aren’t

The cherry falls off and burns whatever it falls on, including your lap, your car seat, your newspaper…and for you nudist smokers, well, nuff said…..

Plus, FSC’s are making people sick all over the nation, google FSC complaint.

This is the Law of Unintended Bad Consequences in action, along with arrogant, tyrannical despots in government which brought us smoking bans in businesses across the country without any choice.

Repeal FSC laws NOW!

bk

#9 ROGER on 01.28.09 at 2:56 AM

Is this stuff really true? Aren’t there tests that are done before this stuff further rolls out? I find some of what is said here beyond belief.

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