Regulating tobacco: The need for a public health judicial decision-making canon

Journal of Law, Medicine and Ethics

Volumn 30, Issue 2, 2002, Pages 281-289

  Daynard, Richard A ^a,b,c  

^a HARVARD LAW SCHOOL   (United States)

^b MASSACHUSETTS INSTITUTE OF TECHNOLOGY   (United States)

^c NORTHEASTERN UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

CIGARETTE SMOKE;

CONFERENCE PAPER; CORRELATION ANALYSIS; COURT; DECISION MAKING; FOOD AND DRUG ADMINISTRATION; GOVERNMENT; GOVERNMENT REGULATION; HEALTH CARE MANAGEMENT; HEALTH CARE POLICY; HEALTH PROGRAM; HEALTH PROMOTION; HEALTH SERVICE; HUMAN; HUMAN RIGHTS; JUSTICE; LAW; LEGAL ASPECT; MARKETING; MEDICAL LITERATURE; POLITICAL SYSTEM; PROTECTION; PUBLIC HEALTH; SAFETY; SMOKING; TOBACCO; TREATMENT PLANNING; UNITED STATES; ARTICLE; TOBACCO INDUSTRY;

DECISION MAKING; HUMANS; PUBLIC HEALTH; TOBACCO INDUSTRY; UNITED STATES; UNITED STATES FOOD AND DRUG ADMINISTRATION;

EID: 0036599433     PISSN: 10731105     EISSN: None     Source Type: Journal    
DOI: 10.1111/j.1748-720X.2002.tb00394.x     Document Type: Conference Paper

References (58)

1. Office on Smoking and Health, U.S. Department of Health and Human Services, Reducing the Health Consequences of Smoking: 25 Years of Progress. A Report of the Surgeon General, DHHS Pub. No. (CDC) 89-8411 (1989): at 160, available at 〈http://www.cdc.gov/tobacco/sgr_1989.htm〉.
2. National Cancer Institute, U.S. Department of Health and Human Services, Changes in Cigarette-Related Disease Risks and Their Implication for Prevention and Control, NIH Pub. No. 97-4213 (Washington, D.C.: National Institutes of Health, 1997): at 8.
3. David Satcher, "Preface," in National Cancer Institute, U.S. Department of Health and Human Services, Health Effects of Exposure to Environmental Tobacco Smoke: The Report of the California Environmental Protection Agency (Bethesda, Maryland: National Cancer Institute, 1999): at 1, available at 〈http://rex.nci.nih.gov/NCI_MONOGRAPHS/MONO10/MONO10. HTM〉.
4. See R.A. Daynard, "The Use of Social Policy in Judicial Decision-Making," Cornell Law Review, 56 (1971): 919-50.
5. U.S. Food and Drug Admin, v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000).
6. Lorillard Tobacco Co. v. Reilly, 533 U.S. 525 (2001).
7. Cipollone v. Liggett Group, Inc., 505 U.S. 504 (1992).
8. L. Glantz and G. Annas, "Tobacco, The Food and Drugs Administration, and Congress," N. Engl. J. Med., 343 (2000): 1802-06.
9. See the constitutional analysis under the subheading, "Invalidating Restrictions on Tobacco Advertising," below.
10. Ibid. Id.
11. See the statutory analysis under the subheadings, "Invalidating Restrictions on Tobacco Advertising," and "Impeding Civil Litigation Against Cigarette Manufacturers," below.
12. See the circuit court decisions that preceded the Supreme Court's Cipollone decision, discussed under the subheading, "Impeding Civil Litigation Against Cigarette Manufacturers," below.
13. Ibid. Id.
14. Brown & Williamson, 529 U.S. 120.
15. State health departments may have this authority, but they have yet to exercise it.
16. Recent statutes in several states require manufacturers to provide some of this information to state agencies. See, e.g., Massachusetts Tobacco Ingredients and Nicotine Disclosure Act, Mass. Gen. Laws ch. 94, § 307B (2000); Tex. Health & Safety Code Ann. §§ 161.351-.355 (1999). A constitutional challenge to the Massachusetts statute was rejected by the First Circuit. Philip Morris, Inc. v. Reilly, No. 00-2425, 2001 WL 1215365 (1st Cir. October 16, 2001).
17. 15 U.S.C. §§ 1331 et seq. (2002).
18. 15 U.S.C. §§ 4401 et seq. (2002).
19. Pub. L. No. 102-321, Title II, § 202, 106 Stat. 394, codified at 42 U.S.C. § 300x-26 (2002).
20. 59 Fed. Reg. 15,968-16,039 (1994).
21. It is rumored that tobacco-state congressional delegations threatened to block the Pure Food and Drug Act of 1906 unless nicotine was first removed from the United States Pharmacopoeia. It was.
22. 15 U.S.C. § 2052(a)(1)(B) (2002); 15 U.S.C. § 1261(f)(2) (2002).
23. Brown & Williamson, 529 U.S. 120.
24. 21 U.S.C. §§ 321(g)(1)(C), 321(h).
25. 60 Fed. Reg. 41,314-41,787 (1995).
26. Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).
27. But, as Justice Breyer pointed out in his dissent, Congress also did nothing to exclude FDA jurisdiction over tobacco products even after it learned that the FDA had changed its position.
28. Coyne Beahm, Inc. v. U.S. Food and Drug Admin., 966 F. Supp. 1374 (M.D.N.C. 1997), rev'd, Brown & Williamson Tobacco Corp. v. U.S. Food and Drug Admin., 153 F.3d 155 (4th Cir. 1998).
29. Glantz and Annas, supra note 8.
30. 15 U.S.C. § 1334 (2002).
31. Lorillard, 533 U.S. 525.
32. Id. at 594.
33. Id. at 570-71.
34. Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 (1976).
35. Lorillard, 533 U.S. at 564.
36. Central Hudson Gas & Elec. Co. v. Public Serv. Comm'n of N.Y., 447 U.S. 557 (1980).
37. Mass. Regs. Code tit. 940, §§ 22.06(5)(a)-(b) (2000).
38. Lorillard, 533 U.S. at 562.
39. Id. at 563.
40. Id. at 554, quoting Central Hudson, 447 U.S. at 562.
41. Through the Cigarette Labeling and Advertising Act, 15 U.S.C. §§ 1331 et seq.
42. Brown & Williamson, 529 U.S. at 161; Lorillard, 533 U.S. at 570-71.
43. E.g., Massachusetts Tobacco Ingredients and Nicotine Yield Act (1996), Mass. Gen. Laws ch. 94, § 307B (2000); N.Y. Exec. Law § 156-c (McKinney 2000) (cigarette fire safety requirements).
44. L. Meckler, "More Teens Choose Not to Smoke," Boston Globe, October 6, 2001, at 2.
45. Cipollone v. Liggett Group, Inc., 789 F.2d 181 (1986).
46. 15 U.S.C. § 1331 (2002).
47. Cipollone, 789 F.2d at 187.
48. Pennington v. Vistron Corp., 876 F.2d 414 (5th Cir. 1989); Roysdon v. R.J. Reynolds Tobacco Co., 849 F.2d 230 (6th Cir. 1988); Stephen v. American Brands, Inc., 825 F.2d 312 (11th Cir. 1987); Palmer v. Liggett Group, Inc., 825 F.2d 620 (1st Cir. 1987).
49. Cipollone v. Liggett Group, Inc., 593 F. Supp. 1146, 1160-63 (D.N.J. 1984).
50. See, e.g., Memorandum of Law Amicus Curiae of the American Public Health Association and the Tobacco Products Liability Project in Opposition to Defendant's Motion to Dismiss, Palmer v. Liggett Group Inc., No. 83-2445-MA (D. Mass. 1986), printed in 1.5 Tobacco Products Litigation Reporter § 3.86 (1986).
51. Cipollone, 505 U.S. 504.
52. 15 U.S.C. § 1334(b) (2002).
53. Cipollone, 505 U.S. at 521.
54. E.g., Griesenbeck v. American Tobacco Co., 897 F. Supp. 815 (D.N.J. 1995).
55. Reprinted in 6.1B Tobacco Products Litigation Reporter §§ 3.121, 3.105, 3.179.
56. One could argue that September 11 represented a massive market failure. Somehow Americans' latent preference for security did not translate into more security being purchased. Perhaps there was inadequate information: Americans didn't realize how little security they had, or how much they would later wish that they had bought. Maybe the underlying problem was an overreliance on government to provide that information or to respond to its own secret information sources with the level of security that we would have purchased had we known. Perhaps if the U.S. government had shared that information generally (or better yet, auctioned it off to the security company whose highest bid demonstrated that it could make the best use of it), and trusted us to protect ourselves, the devastation could somehow have been lessened. One could argue this way, but one would have to be a monomaniac to do so.
57. O.W. Holmes, The Common Law (Cambridge, Massachusetts: Belknap Press, 1967): at 1.
58. Seavey v. Preble, 64 Me. 120, 121 (1874), quoted in W.E. Parmet, "Legal Rights and Communicable Disease: AIDS, the Police Power, and Individual Liberty," Journal of Health Politics, Policy and Law, 14 (1989): 741-71, at 746.