Are artificial tans the new cigarette? How plaintiffs can use the lessons of tobacco litigation in bringing claims against the indoor tanning industry

Michigan Law Review

Volumn 107, Issue 2, 2008, Pages 365-390

  Loh, Andrea Y ^a  

^a UNIVERSITY OF MICHIGAN LAW SCHOOL   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

ADVERTIZING; ARTICLE; COMMERCIAL PHENOMENA; COSMETIC INDUSTRY; GOVERNMENT REGULATION; HUMAN; LEGAL ASPECT; LEGAL LIABILITY; RADIATION EXPOSURE; RADIATION INJURY; RISK; SAFETY; SKIN PIGMENTATION; SKIN TUMOR; SMOKING; TOBACCO INDUSTRY; ULTRAVIOLET RADIATION; UNITED STATES;

ADVERTISING AS TOPIC; BEAUTY CULTURE; COMMERCE; CONSUMER PRODUCT SAFETY; GOVERNMENT REGULATION; HUMANS; LIABILITY, LEGAL; NEOPLASMS, RADIATION-INDUCED; RISK; SKIN NEOPLASMS; SKIN PIGMENTATION; SMOKING; TOBACCO INDUSTRY; ULTRAVIOLET RAYS; UNITED STATES;

EID: 56249109798     PISSN: 00262234     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (274)

1. See Margaret Hunter, Light, Bright, and Almost White: The Advantages and Disadvantages of Light Skin, in SKIN DEEP 22, 25-26, 29 (Cedric Herring et al. eds., 2004).
2. Julie Rawe, Why Teens Are Obsessed With Tanning, TIME, Aug. 7, 2006, at 54-55.
3. See id. at 54.
4. See Ctr. for Devices & Radiological Health, FDA, Tanning Products, http://www.fda.gov/cdrh/tanning/tanningproducts.html (last visited Aug. 20, 2008) [hereinafter FDA, Tanning Roducts].
5. Rawe, supra note 2, at 54; Jim. Snyder, Indoor tanning industry feels the heat, THE HILL, Sept. 28, 2006, at 12, available at http://thehill.com/the-executive/indoor-tanning-industry- feels-the-heat-2006-09-28.html;
6. Paul Vitello, Skin Cancer Is Up; Tanning Industry a Target, N.Y. TIMES, Aug. 14, 2006, at B1.
7. Fed. Trade Comm'n, Facts for Consumers: Indoor Tanning (Aug. 1997), http://www.ftc.gov/bcp/edu/pubs/consumer/health/hea11.pdf.
8. See Rawe, supra note 2, at 54.
9. Id. A. doctor at New York. City's Mount Sinai School of Medicine comments that " '[s]kin cancer used to be something old people got.... Not a month goes by that I don't see somebody in their 20s now. That was unheard of 10 years ago.' "
10. Id.;
11. see also Am. Acad. of Dermatology, The Darker Side of Tanning (Feb. 4, 1997), http://www.dhh.louisiana.gov/offices/miscdocs/docs-206/ food_drug/dark_side.pdf ("The number of skin cancer cases has been, rising over the years, and experts say that this is due to increasing exposure to UV radiation from the sun, tanning beds, and sun lamps.").
12. Michelle Meadows, Don't Be in the Dark About Tanning, FDA CONSUMER, Nov.-Dec. 2003, at 16.
13. Fed. Trade Comm'n, supra note 6, at 2.
14. Lisette Hilton, The Darker Side of Tanning, 3 DERMATOLOGY INSIGHTS (Am. Acad. of Dermatology, Schaumburg, IL), Vol. 3, No. 1 (2002), at 11.
15. Ctrs. for Disease Control & Prevention, Dep't of Health & Human Servs., Cancer: Protect Yourself from the Sun, http://www.cdc.gov/cancer/skin/ basic_info/howto.htm (last visited Aug. 20, 2008).
16. See Am. Acad, of Dermatology, Dermatology Association Calls for Tighter Regulations on Indoor Tanning, http://www.yourskinandsun.com/indoortan. html (last visited Aug. 17, 2008).
17. WORLD HEALTH ORG., ARTIFICIAL TANNING SUNBEDS: RISKS AND GUIDANCE 4 (2003), available at http://www.who.int/uv/publications/en/sunbeds.pdf ("[C]umulative exposure to UV radiation, increases the risk of skin cancers.").
18. Council on Scientific Affairs, Harmful Effects of Ultraviolet Radiation, 262 JAMA 380, 380-84 (1989).
19. Am. Acad. of Dermatology, supra note 8; see also Vitello, supra note 5 (" '[I]ndoor tanning is similar-we know it will cause cancer. Not maybe. Not might. It's going to cause cancer.' " (quoting a Mt. Sinai School of Medicine doctor drawing a comparison to the harmfulness of cigarettes)).
20. The Truth About Tanning: What You Need to Know to Protect Your Skin, FDA & You (FDA, Washington, D.C), Summer 2005, at 1, 5 ("[T]he FDA doesn't recommend the use of indoor tanning equipment-EVER.");
21. see also Am. Acad. of Dermatology, supra note 8 ("The Food and Drug Administration (FDA) and the Centers for Disease Control and Prevention (CDC) encourage people to avoid use of tanning beds and sun lamps.... AMA and AAD have urged action, that would ban the sale and use of tanning equipment for nonmedical purposes.").
22. For example, Brand Expansion advertises that "[c]ontrary to popular fear, [indoor] tanning does not cause cancer, [but] rather prevents it!" Tanning Franchise Review, http://tanning-franchises.brandexpansion.com/image- sun-tanning-franchise-offers-great-training-innovation/ (last visited Aug. 20, 2008). The claim that indoor tanning does not cause cancer is false. See supra text accompanying notes 6-17.
23. SunTanning.com, http://www.suntanning.com (last visited Aug. 20, 2008); see also Novatan, Are Tanning Beds Safe?, http://www.novatan.com/are- tanning-beds-safe.html (last visited Aug. 3, 2008) ("[I]ndoor tanning is beneficial as one is not exposed to the harmful effects of the sun.").
24. Vitello, supra note 5 (" '[D]ermatologists have been trying to link indoor tanning to skin cancer for 20 years, and there is no proof.' " (quoting John Overstreet, the executive director of the Indoor Tanning Association)). This Note assumes that government and other independent scientists are more credible than tanning companies, the latter of which have an investment in a particular outcome of scientific research regarding tanning and its benefits and harms.
25. Indoor Tanning Ass'n, FAQs, http://www.theita.com/indoor/faq.cfm (last visited Aug. 20, 2008) ("[Relatively brief exposure to sunshine or its equivalent in tanning beds several times a week can help to ward off a host of debilitating and sometimes deadly diseases, including osteoporosis, hypertension, diabetes, depression, and cancer of the bladder, breast, colon, ovary, uterus, kidney and prostate, as well as multiple myeloma and non-Hodgkin's lymphoma." (footnotes omitted));
26. see also Vitamin. D May Lower Risk Of Multiple Sclerosis, http://www.look.ingfit.com/hotnews/71h410390.html (last visited Aug. 20, 2008); Wolff System, Health Benefits of Indoor Tanning, http://www.wolfftanningbed.com/ tanning-bed-benefits.html (last visited Aug. 20, 2008) (claiming indoor tanning "aids in the building of strong bones, teeth, and blood cell formation," treats psoriasis, and helps treat seasonal affective disorder).
27. 21 C.F.R. § 1040.20 (2007) ("Sunlamp products and ultraviolet lamps intended for use in sunlamp products"). These regulations specify details such as irradiance ratio limits, timer system, specifications, control for termination of radiation emission, protective eyewear, compatibility of lamps, instructions for users, and labeling requirements. The labeling requirements require the following warnings: DANGER-Ultraviolet radiation. Follow instructions. Avoid overexposure. As with natural sunlight, overexposure can cause eye and skin injury and allergic reactions. Repeated exposure may cause premature aging of the skin and skin cancer. WEAR PROTECTIVE EYEWEAR; FAILURE TO MAY RESULT IN SEVERE BURNS OR LONG-TERM INJURY TO THE EYES. Medications or cosmetics may increase your sensitivity to the ultraviolet radiation. Consult physician before using sunlamp if you are using medications or have a history of skin problems or believe yourself especially sensitive to sunlight. If you do not tan in the sun, you are unlikely to tan from the use of this product.
28. Id. § 1040.20(d)(1)(i). However, there is no requirement as to where this label is placed or how big the label and its content should be.
29. See id. § 1040.20. The federal regulations use the term "sunlamp;" this Note uses the term "tanning bed" analogously. Sunlamps emit the ultraviolet rays that cause tanning; tanning beds are called "sunlamp products" because they arrange the sunlamps into a bed-shaped form, but are essentially the same product.
30. See The Free Dictionary, Tanning Bed, http://www. thefreedictionary.com/tanning+bed (last visited Aug. 20, 2008);
31. see also Ctr. for Devices & Radiological Health, FDA, Sunlamps and Sunlamp Products (Tanning Beds/Booths), http://www.fda.gov/cdrh/radhealth/ products/sunlamps.html (last visited Aug. 20, 2008).
32. Am. Acad. of Dermatology, supra note 13.
33. Id.;
34. see also Alan B. Fleischer, Jr. et al., Tanning facility compliance with state and federal regulations in North Carolina: A poor performance, 28 J. AM. ACAD. DERMATOLOGY 212 (1993).
35. See Am. Acad. of Dermatology, supra note 13.
36. Jim McKinley, Town Regulates Tanning Salons, N.Y. TIMES, Mar. 8, 1987, § 11NJ, at 16.
37. Id. The FTC also regulates advertising, though its enforcement of regulations concerning false advertising against tanning salons seems weak.
38. See infra Section I.B.
39. A. salon worker stated: I had a pretty good number of ladies ... who would try and come in every day, and I mean every day.... I know that they would come in later on when I was off and tell a coworker of mine that that was their first of the day. And if that didn't work out they would go over across the street to one of the other salons in the area.
40. Phillip Vannini & Aaron. M. McCright, To Die For: The Semiotic Seductive Power of the Tanned Body, 27 SYMBOLIC INTERACTION 309, 317-18 (2004). "One young man who owned [a tanning lamp] said 'Yeah, I don't care. I'll do forty minutes. Sometimes it feels so nice that I nap in there.' "
41. Id. at 322.
42. See id. at 314;
43. see also supra text accompanying notes 6-17.
44. The case was filed August 14, 2006 in New Jersey. Class Action Complaint, Nafar v. Hollywood Tanning Sys., Inc., No. 2:06-cv-03826-DMC-MF (D.N.J. Aug. 14, 2006).
45. These include Philip Morris, R.J. Reynolds, and Brown & Williamson. Whiteley v. Philip Morris Inc., 11 Cal. Rptr. 3d 807 (Cal. Ct. App. 2004); Engle v. R.J. Reynolds, No. 94-08273 CA-22, 2000 WL 33534572 (Fla. Cir. Ct. 2000),
46. rev'd sub nom. Liggett Group, Inc. v. Engle, 853 So. 2d 434 (Fla. Dist. Ct. App. 2003)
47. modified 945 So. 2d 1246 (Fla. 2006);
48. Boerner v. Brown & Williamson Tobacco Co., 394 F.3d 594 (8th Cir. 2005).
49. Because tort claims against indoor tanning salons are novel, plaintiffs and courts will necessarily look to tort cases involving other industries for guidance. The similarities between the cigarette and indoor tanning industries signal that cigarette litigation offers a useful starting point in forming successful tort claims against indoor tanning salons and manufacturers.
50. Acquired behaviors are defined as "activities that people choose to do." Am. Cancer Soc'y, Cigarette Smoking, http://www.cancer.org/docroot/ PED/content/PED_10_2X_Cigarette_Smoking.asp?sitearea=PED (last visited Aug. 20, 2008) [hereinafter Am. Cancer Soc'y, Cigarette Smoking].
51. Am. Acad. of Dermatology, Research Shows Popularity of Indoor Tanning Contributes to Increased Incidence of Skin. Cancer (Jan. 12, 2006), http://www.aad.org/media/background/jaad/jaad_increase_skin_cancer_12_05.html (last visited Aug. 20, 2008);
52. Am. Cancer Soc'y, Cigarette Smoking, supra note 33.
53. See supra text accompanying note 16. Established scientific evidence, some of which was conducted by the cigarette companies themselves, shows a conclusive link between cigarette smoking and various types of cancer. Boeken v. Philip Morris Inc., 26 Cal. Rptr. 3d 638, 648-49 (Cal. Ct. App. 2005);
54. Am. Cancer Soc'y, Cigarette Smoking, supra note 33. The findings of this research, completed in the 1950s, produced anticigarette campaigns by the American Cancer Society, the American Lung Association, and the American Heart Association, and a wave of consumer litigation.
55. See MARK WOLFSON, THE FIGHT AGAINST BIG TOBACCO: THE MOVEMENT, THE STATE, AND THE PUBLIC'S HEALTH 21, 31-32, 38-39 (2001).
56. See WOLFSON, supra note 35, at 39;
57. supra text accompanying notes 16-20. The Indoor Tanning Association, which represents thousands of indoor tanning manufacturers, distributors, and facility owners, refuses to admit that indoor tanning is responsible for skin cancer. Instead, the Association blames increased skin cancer rates on "bad habits from, the 1960s, 1970s and 1980s that were based on ignorance and misinformation, about sun tanning."
58. Indoor Tanning Ass'n, supra note 21. In addition, the organization claims that "photobiology research ... has determined that most skin cancers are related to a strong pattern of intermittent exposure to ultraviolet light in people who are genetically predisposed to skin cancer."
59. Id.
60. See Am. Cancer Soc'y, Cigarette Smoking, supra note 33.
61. In the cigarette cases, courts evinced a dislike for advertising targeted at teenagers, speaking extremely harshly when discussing the behavior of tobacco companies. See, e.g., Boeken, 26 Cal. Rptr. 3d at 654;
62. Whiteley v. Philip Morris, 11 Cal. Rptr. 3d 807, 843 (Cal. Ct. App. 2004). Similarly, the tanning industry recognizes youth, particularly females, as an important customer segment. A 2006 study estimated that 2.3 million teenagers, or as many as 13-34% of youths in the United States, use indoor tanning salons.
63. See Rawe, supra note 2, at 54. Indoor tanning companies advertise heavily to these clients. Many offer student discounts, advertise in college coupon books and bookstores, and concentrate such, advertisements around spring break, prom, and winter holidays.
64. Janice C. Young & Robert Walker, Understanding Students' Indoor Tanning Practices and Beliefs to Reduce Skin Cancer Risks, 14 AM. J. HEALTH STUD. 120, 121, 124 (1998) (talking about a "healthy" tan). In response to the particular allure of indoor tanning for youths, states have passed laws regulating underage use.
65. See Nat'l Conference of State Legislatures, Tanning Restrictions for Minors: A State-by-State Comparison, http://www.ncsl.Org/programs/health/ tanningrestrictions.htm (last visited Aug. 20, 2008). The industry has adamantly protested state implementation of age limits on indoor tanning, hiring lobbyists to further such interests.
66. See Snyder, supra note 5;
67. Vitello, supra note 5.
68. For a discussion of why social factors particularly encourage youth tanning, see Vannini & McCright, supra note 28, at 319-22;
69. Rawe, supra note 2, at 55;
70. and Am. Acad. of Dermatology, supra note 13.
71. For a discussion of the unique health risks indoor tanning presents to youths, see Richard C. Palmer et al., Indoor Tanning Facility Density in Eighty U.S. Cities, 27 J. COMMUNITY HEALTH 191, 192 (2002);
72. Carol Rados, Teen Tanning Hazards, FDA CONSUMER, Mar.-Apr. 2005, at 8;
73. CBC News, No indoor tanning for children: study (Apr. 24, 2003), http://www.cbc.ca/news/story/2003/04/24/tanteens_030424.html (last visited Aug. 20, 2008);
74. Fed. Trade Comm'n, supra note 6.
75. As of the date this Note was sent to publication, the initial indoor tanning suit was not yet resolved. While the majority of lawsuits against the cigarette industry have been largely unsuccessful, there have been a number of high-profile, large-verdict victories. See W. KIP VISCUSI, SMOKE-FILLED ROOMS: A POSTMORTEM ON THE TOBACCO DEAL 10, 215 (2002);
76. WOLFSON, supra note 35, at 39. This indicates that lawsuits of this kind are tough, but not impossible, to win.
77. See Henley v. Philip Monis Inc., 9 Cal. Rptr. 3d 29, 55, 61, 65 (Cal. Ct. App. 2004);
78. Brief of Defendant in Support of Motion for Partial Judgment on the Pleadings at 10, 18, Nafar v. Hollywood Tanning Sys., Inc., No. 06-CV-03826, 2007 WL 1101440 (D.N.J. Apr. 10, 2007).
79. See WOLFSON, supra note 35, at 39;
80. Brief of Defendant, supra note 40, at 25. Though a full analysis of causation issues is beyond the scope of this Note, at least two difficulties will be present in any case. First, plaintiffs must allege a causal link between the tanning company's UV rays and the resulting injury. Cigarette plaintiffs often had a solid causation claim because (1) cigarettes were unique in causing lung cancer and (2) plaintiffs often smoked only one brand of cigarette. Boerner v. Brown & Williamson Tobacco Co., 394 F.3d 594, 597-98 (8th Cir. 2005);
81. Henley, 9 Cal. Rptr. 3d at 40-41. These plaintiffs therefore knew exactly who to blame once an injury materialized. In the tanning context this could be problematic because contact from a single indoor tanning company's beds will never be the sole source of a person's UV-ray exposure. People are exposed to natural UV rays from sunlight and are likely to have tanned indoors at many different salons. Thus, the ideal plaintiff to bring an indoor tanning lawsuit is one who has minimal natural UV exposure and has received a majority of her artificial UV-ray exposure from the same company's indoor tanning beds. Second, plaintiffs must show proximate causation. Plaintiffs need to convince a jury that the tanning company's misconduct directly caused the injury: had the misconduct not been present the plaintiff would not have indoor tanned in this way and been injured. The argument will vary depending on the particular claim, but studies show educational campaigns about indoor tanning's dangers have the potential to change behavior.
82. Christina J. Mills et. al., Symposium Report: Second Symposium on Ultraviolet Radiation-related Diseases, 18 CHRONIC DISEASES IN CAN. (1997), available at http://www.phac-aspc.gc.ca/ publicat/cdic-mcc/18-1/e_e.html (reviewing a symposium presentation by Mark Elwood on how educational programs alter behavior).
83. CBC News, supra note 38; William Saletan, Master Sunshine: The Overzealous War on Indoor Tanning, SLATE, May 13, 2006, http://www.slate.com/id/2141649.
84. There are many differences as well. For example, the tanning industry has only existed for the past twenty-five to thirty years. Indoor Tanning Ass'n, supra note 21.
85. RESTATEMENT (SECOND) OF TORTS § 525 (1965).
86. For examples of states with Restatement-like approaches, see Glassner v. R.J. Reynolds Tobacco Co., 223 F.3d 343, 352 (6th Cir. 2000) (Oklahoma law)
87. and Williams v. Philip Morris Inc., 48 P.3d 824, 830 (Or. Ct. App. 2002).
88. See, e.g., Whiteley v. Philip Morris Inc., 11 Cal. Rptr. 3d 807, 843-46 (Cal. Ct. App. 2004);
89. Williams, 48 P.3d at 831-35.
90. E.g., Whiteley, 11 Cal. Rptr. 3d at 843.
91. Id.
92. Williams, 48 P.3d at 834.
93. Id.
94. E.g., id. at 839.
95. See Boeken v. Philip Morris Inc., 26 Cal. Rptr. 3d 638, 650-51 (Cal. Ct. App. 2005).
96. Id. at 650.
97. Id. at 648;
98. Henley v. Philip Morris Inc., 9 Cal. Rptr. 3d 29, 62 (Cal. Ct. App. 2004).
99. Boeken, 26 Cal. Rptr. 3d at 648.
100. Tobacco Indus. Research. Comm., Advertisement, A Frank Statement to Cigarette Smokers, N.Y. TIMES, Jan. 4, 1954, at 15. This ad reached 43,245,000 people in 258 cities.
101. PHILIP J. HILTS, SMOKESCREEN: THE TRUTH BEHIND THE TOBACCO INDUSTRY COVER-UP 12 (1996).
102. Tobacco Indus. Research Comm., supra note 55.
103. Boeken, 26 Cal. Rptr. 3d at 647.
104. See supra notes 9-17 and accompanying text.
105. Indoor Tanning Ass'n, supra note 21.
106. Id.
107. E.g., Tanning Franchise Review, supra note 18;
108. see also Snyder, supra note 5 (describing industry lobbying efforts). These claims directly contradict scientific findings.
109. See supra notes 6-17 and accompanying text.
110. The plaintiff in Nafar v. Hollywood Tanning Systems Inc. based her fraud claim on misrepresentations by the defendant stating indoor tanning is "beneficial to customer's health and wellbeing."
111. Class Action Complaint, supra note 30, at 149.
112. Cancer Specialists Issue Warning About Indoor Tanning Risks, UNIV. OF IOWA HEALTH CARE NEWS, Jan. 15, 2007, http://www.uihealthcare.com/news/news/2007/01/15tanning.html. For more on the International Agency for Research on Cancer, see http://www.iarc.fr.
113. See Cal. SunCare, Inc., File No. 942-3218, 1996 WL 760095 (FTC Sept. 18, 1996) (Agreement Containing Consent Order to Cease and Desist).
114. Id.;
115. Press Release, Fed. Trade Comm'n, FTC Settlement Stresses Health Risks of Tanning (Nov. 19, 1996), http://www.ftc.gov/opa/1996/11/caltan.shtm.
116. Cal. SunCare, Inc., File No. 942-3218, 1996 WL 760095 (FTC Sept. 18, 1996) (Agreement Containing Consent Order to Cease and Desist).
117. Id.;
118. see also Press Release, Fed. Trade Comm'n, supra note 65.
119. There is no private right of action for violations of the FTC's regulations. "In order to permit the FTC to discharge its responsibilities, Congress vested the Commission with broad discretionary powers that are akin to prosecutorial functions. For this reason, courts have uniformly held that there is no implied private right of action under the FTC Act." Trudeau v. United States, 68 Fed. Cl. 121, 130 (2005) (citation omitted).
120. Salon Profilo and Spa, Tanning, http://www.salonprofiloandspa.com/ tanning.html (last visited Aug. 20, 2008).
121. See Snyder, supra note 5.
122. UT Lotions, Benefits, http://www.utlotions.com/benefits.htm. (last visited Aug. 20, 2008). However, "production, of vitamin D by UV radiation requires doses that are considerably less than those usually obtained in a tanning session." Henry W. Lim et al., Sunlight, tanning booths, and vitamin D, 52 J. AM. ACAD. DERMATOLOGY 868, 871 (2005). Consumers are not actually told this. Similar health claims are popular in the indoor tanning industry.
123. See, e.g., Hollywood Tans, Health and Beauty Guide: Tanning, http://adserver.sdreader.com/guides/health/index.php?page.id= hollywdtans (last visited Aug. 20, 2008);
124. Novatan, supra note 19 (stating that sun exposure can help prevent cancer, that the benefits of sun exposure far outweigh the risks of sunburn and overexposure, and that indoor tanning helps reduce sunburns); Tanning-Advisor.com, Discussion: Indoor Tanning Versus Outdoor Tanning, http://www.tanning-advisor.com/indoor-tanning-versus-outdoor-tanning.html (last visited Aug. 20, 2008);
125. Wolff System, supra note 21.
126. In fact, a person's daily vitamin D requirements can be satisfied by food and a few minutes of sun per week. Elisabeth Leamy & Allen Levine, New Ads Claim Tanning is Good for You, ABC NEWS, Mar. 27, 2008, http://abcnews.go.co.m/GMA/OnCall/story?id=4534076.
127. The particular claim was worded as a violation of the New Jersey Consumer Fraud Act. However, within the claim was an allegation of "omissions of material fact" concerning indoor tanning. See Class Action Complaint, supra note 30, at 14-15.
128. Whiteley v. Philip Morris Inc., 11 Cal. Rptr. 3d 807 (Cal. Ct. App. 2004);
129. Henley v. Philip Morris Inc., 9 Cal. Rptr. 3d 29 (Cal. Ct. App. 2004).
130. Tuttle v. Lorillard Tobacco Co., 377 F.3d 917, 924 (8th Cir. 2004).
131. E.g., Conley v. R.J. Reynolds Tobacco Co., 286 F. Supp. 2d 1097, 1111 (N.D. Cal. 2002).
132. Allgood v. R.J. Reynolds Tobacco Co., 80 F.3d 168, 172 (5th Cir. 1996)
133. (quoting Joseph. E. Seagram & Sons, Inc. v. McGuire, 814 S.W.2d 385, 387 (Tex. 1991)).
134. The term is used in other portions of the Restatement in reference to facts that are obvious and well known. E.g., RESTATEMENT (SECOND) OF TORTS § 388 (1965).
135. Public Health Cigarette Smoking Act of 1969, Pub. L. No. 91-222, 84 Stat. 87 (codified as amended at 15 U.S.C §§ 1332-1340 (2000)).
136. See Burton v. R.J. Reynolds Tobacco Co., 397 F.3d 906, 910 (10th Cir. 2005).
137. E.g., Whiteley v. Philip Morris Inc., 11 Cal. Rptr. 3d 807, 814 (Cal. Ct. App. 2004);
138. Henley v. Philip Morris Inc., 9 Cal. Rptr. 3d 29, 39 (Cal. Ct. App. 2004);
139. Engle v. R.J. Reynolds, No. 94-08273 CA-22, 2000 WL 33534572, at *6 (Fla. Cir. Ct. 2000)
140. rev'd sub nom. Liggett Group, Inc. v. Engle, 853 So. 2d 434 (Fla. Dist. Ct. App. 2003)
141. modified 945 So. 2d 1246 (Fla. 2006). The majority of the tobacco cases based on a failure to warn claim at this time, however, were stopped by the courts because judges held that the dangers of smoking were in fact common knowledge.
142. See, e.g., Glassner v. R.J. Reynolds Tobacco Co., 223 F.3d 343, 350-52 (6th. Cir. 2000);
143. Allgood, 80 F.3d at 172; Todd v. Brown & Williamson Tobacco Corp., 924 F. Supp. 59, 62 (W.D. La. 1996) (" 'Knowledge that cigarette smoking is harmful to health is widespread and can be considered part of the common knowledge of the community.' "
144. (quoting Roysdon v. R.J. Reynolds Tobacco Co., 849 F.2d 230, 236 (6th Cir. 1988))).
145. Boeken v. Philip Morris Inc., 26 Cal. Rptr. 3d 638, 647-51 (Cal. Ct. App. 2005).
146. Whiteley, 11 Cal. Rptr. 3d at 814 ("Whiteley first learned that smoking could cause something more serious than a cough ... [t]he day the doctor told [her she] had lung cancer ...." (internal quotation marks omitted));
147. Henley, 9 Cal. Rptr. 3d at 39 ("[N]obody told her that cigarettes could cause her serious disease.... As a result she believed that cigarettes ... were not a harmful product." (internal quotation marks omitted));
148. Miele v. Am. Tobacco Co., 770 N.Y.S.2d 386, 389-90 (N.Y. App. Div. 2003) (indicating that common knowledge would not bar claim in part because of the dissemination of information disputing the validity of evidence linking cigarettes to cancer).
149. Whiteley, 11 Cal. Rptr. 3d at 815.
150. Tobacco Indus. Research Comm., supra note 55.
151. HILTS, supra note 55, at 12.
152. See cases cited supra note 81.
153. Brief of Defendant, supra note 40, at 33 ("There is ample evidence that people know fully the information conveyed by these sources. In a survey of college students, more than 90% 'believed tanning lamps could cause premature aging and skin cancer.' "
154. (quoting Carla Kemp, Tanning lamps popular with students despite risks, AM. ACAD. PEDIATRICS NEWS, Jan. 2003, at 2));
155. see also J. Matthew Knight et al., Awareness of the Risks of Tanning Lamps Does Not Influence Behavior Among College Students, 138 ARCHIVES DERMATOLOGY 1311, 1311 (2002) ("Despite adequate knowledge of the adverse effects of UV exposure, university students freely and frequently use tanning lamps, primarily for desired cosmetic appearance.");
156. Survey shows teens know risks but tan anyway, MSNBC, May 2, 2005, http://www.msnbc.msn.com/id/7701260.
157. FDA, Tanning Products, supra note 4.
158. An analogy to fast food can also be drawn. See Pelman v. McDonald's Co., 237 F. Supp. 2d 512, 532 (S.D.N.Y. 2003) (finding that it was well known that fast food contained ingredients that were bad for one's health).
159. Conley v. R.J. Reynolds Tobacco Co., 286 F. Supp. 2d 1097, 1114 (N.D. Cal. 2002).
160. In response to the question whether tanning beds are more intense than natural sunlight, the Indoor Tanning Association states:
161. The amount of UV radiation that a person is exposed to depends on many factors including time of day, season and latitude. The spectrum of UV radiation from a tanning bed is similar to that of sunlight. It is less intense than being in the sun at the equator in June at noon, but more intense than being in the sun in Boston or San Francisco at the same time of year. . . . This highlights an important benefit of moderate tanning-it prevents burning.
162. Indoor Tanning Ass'n, supra note 21 (emphasis added).
163. For a discussion of the differences between, natural sunshine and artificial tanning lamps, see Lim et al., supra note 71 ("[A] direct comparison in time between the sun and a sunlamp cannot be made.").
164. See supra note 41 for a discussion on causation.
165. Elizabeth Carruth, Do Tanning Beds Cause Skin Cancer and Other Harmful Effects?, http://www.vanderbilt.edu/AnS/psychology/health_psychology/Tanning. html (last visited Aug. 20, 2008). The Indoor Tanning Association claims that indoor tanning is a more responsible form of tanning than outdoor tanning.
166. Indoor Tanning Ass'n, supra note 21. Although this claim is available against both indoor tanning manufacturers and salons, salons do the majority of the advertising.
167. Carruth, supra note 92;
168. see also TanningFacts.com, Outdoor vs. Indoor Tanning, http://tanningfacts.com/outdoor_vs_indoor (last visited Aug. 20, 2008) (suggesting that outdoor tanning is less desirable due to a variety of variables that leave "[o]utdoor tanners ... at the mercy of many uncontrolled elements").
169. Carruth, supra note 92.
170. Id.
171. Id.; tanningtruth.com, Indoor Tanning: Smart Tan, http://www.tanningtruth.com/index.php/indoor_tanning (last visited Aug. 20, 2008) ("Studies have shown, that teens who tan in salons are less likely to sunburn outdoors compared to non-tanners.... 83 percent of teenagers who tan indoors prior to taking sunny vacations report that their indoor tan ... helped them to prevent sunburn.").
172. Evidence suggests consumers mistakenly believe indoor tanning is a "healthy" alternative to outdoor tanning, that it is safer, and that having a base tan decreases the risk of skin cancer. See Carruth, supra note 92;
173. see also Craig D. Murray & Elizabeth Turner, Health, risk and sunbed use: A qualitative study, 6 HEALTH RISK & SOC'Y 67, 73 (2004);
174. Vannini & McCright, supra note 28, at 321;
175. Young & Walker, supra note 38, at 124 (discussing the myth of a "healthy" tan).
176. Young & Walker, supra note 38, at 121;
177. cf. Canuth, supra note 92 ("[T]he amount of UVA radiation [is] anywhere from about 3-8 times greater in the tanning beds than in the light from the sun.").
178. Advertisements state that indoor tanning is more responsible than outdoor tanning, calling the former "moderate." In response to questions about the intensity of indoor tanning UV rays, such ads claim, that "[t]he spectrum, of UV radiation from a tanning bed is similar to that of sunlight." Indoor Tanning Ass'n, supra note 21.
179. Vilma E. Cokkinides et al., Use of Indoor Tanning Sunlamps by U.S. Youth, Ages 11-18 Years, and by Their Parent or Guardian Caregivers: Prevalence and Correlates, 109 PEDIATRICS 1124, 1129 (2002) (emphasis added).
180. See supra notes 92-94 and accompanying text.
181. Carruth, supra note 92.
182. Id.; see also Farah R. Abdulla et al., Tanning and Skin Cancer, 22 PEDIATRIC DERMATOLOGY 501, 503 (2005);
183. James M. Spencer & Rex Amonette, Tanning Beds and Skin Cancer: Artificial Sun + Old Sol = Real Risk, 16 CLINICS DERMATOLOGY 487, 488-89 (1998).
184. Meadows, supra note 9.
185. Amy Thorlin, Determining Exposure Schedules, http://www.vpico.com/ articlemanager/printerfriendly.aspx?aiticle=124874 (last visited Aug. 20, 2008).
186. Identity Salon Day Spa, Tanning: Recommended Schedule & Warnings, http://www.identitypullman.com/services/tanning2.php (last visited Aug. 20, 2008).
187. Carruth, supra note 92.
188. The Indoor Tanning Association makes no mention of these dangers on its web page concerning indoor tanning FAQs. See Indoor Tanning Ass'n, supra note 21.
189. 21 C.F.R. § 1040.20(d)(1)(i) (2007). The federal Regulations state as follows: Each sunlamp product shall have a label(s) which contains: (i) A warning statement with the words "DANGER-Ultraviolet radiation. Follow instructions. Avoid overexposure. As with natural sunlight, overexposure can cause eye and skin injury and allergic reactions. Repeated exposure may cause premature aging of the skin and skin cancer. WEAR PROTECTIVE EYEWEAR; FAILURE TO MAY RESULT IN SEVERE BURNS OR LONG-TERM INJURY TO THE EYES. Medications or cosmetics may increase your sensitivity to the ultraviolet radiation. Consult physician before using sunlamp if you are using medications or have a history of skin problems or believe yourself especially sensitive to sunlight. If you do not tan in the sun, you are unlikely to tan from the use of this product."
190. Id. § 1040.20(d)(1)(i).
191. Defendants are likely to argue that they are shielded from liability because their statements comply with federally mandated warnings. However, since the claims are based on state tort law, such an argument is not sufficient to shield them from liability. The FDA regulations do not indicate that they preempt state tort law suits. See 21 C.F.R. § 1040.20. In Rucker v. Norfolk & Western Railway Co., the court, speaking of railway safety regulations, stated: [W]e do not believe that the presence of Federal regulations on the subject precludes the imposition of tort liability according to State tort law standards more stringent than those contained in the Federal regulations. We find no indication in the Federal regulations that the preemption of State tort law was intended. In fact, it would be reasonable to conclude that the purpose of the regulations is to insure greater safety and that the imposition of tort liability on the basis of more stringent State tort law is consistent with this purpose.
192. N.E.2d 534, 537 (Ill. 1979) (citations omitted);
193. see also Haidak v. Collagen Corp., 67 F. Supp. 2d 21, 33 (D. Mass. 1999) (discussing the Medical Devices Amendments, the court required a party claiming preemption to demonstrate that there was " 'a conflict between the state and federal regulations of the medical devices which threaten[ed] to interfere with, a specific federal interest.'"
194. (quoting Mitchell v. Collagen Corp., 126 F.3d 902, 912 (7th Cir. 1997)). However, if the FDA were to subsequently indicate that its regulations preempt state tort law, courts would likely afford this determination deference under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 863-64 (1984).
195. In Horn v. Thoratec Corp., the court found the plaintiff's claims "preempted by the express preemption provision in the Food Drug and Cosmetic Act." 376 F.3d 163, 164 (3d Cir. 2004).
196. See Diana Clarke, Dermatology Association Calls For Tighter
197. The leading method of contraception in the United States in 2002 was the oral contraceptive pill. At that time it was being used by 11.6 million women 15-44 years of age, and had been used at some point by a total of 44.5 million women 15-44 years of age. William D. Mosher et al., The Use of Contraception and Use of Family Planning Services in the United States: 1982-2002, ADVANCE DATA VITAL & HEALTH STATS. (Dep't Health & Human Servs./Ctrs. Disease Control & Prevention, Hyattsville, Md.), Dec. 10, 2004, at 1, 1.
198. See Young & Walker, supra note 38, at 121 ("Many female students are completely unaware of their skin's elevated sensitivity to natural or artificial light due to the use of birth-control hormones and of their increased risk of burning.").
199. Id.
200. Id.;
201. see also Palmer et al., supra note 38, at 192 (identifying exacerbation of photosensitive diseases as a possible risk);
202. Spencer & Amonette, supra note 103, at 489 (same);
203. Carruth, supra note 92 (identifying damage to blood vessels and damage to immune system as potential risks).
204. Spencer & Amonette, supra note 103, at 489. The success of such a claim is contingent on the defendant actually having such knowledge. However, the evidence suggests that indoor tanning salons and bed manufacturers are aware of the potential for interaction.
205. See, e.g., Tanning Beds Central, Indoor Tanning Beds, http://www.tanning-bed-central.com/indoor-tanning-beds.htm (last visited Aug. 20, 2008); TanningOnline.com, Tanning Info, http://www.tanningonline.com/ tanning_bed_info_warnings.html (last visited Aug. 20, 2008).
206. Cigarette plaintiffs brought design defect claims successfully in the past. E.g., Boerner v. Brown. & Williamson Tobacco Co., 394 F.3d 594 (8th Cir. 2005).
207. Id. at 598;
208. see also RESTATEMENT (SECOND) OF TORTS § 402A (1965).
209. See Boerner, 394 F.3d at 598-99;
210. see also Whiteley v. Philip Morris Inc., 11 Cal. Rptr. 3d 807, 862-63 (Cal. Ct. App. 2004) ("[P]laintiff has [not] shown 'in reasonable medical probability' that the alleged negligent design of those cigarette products was a substantial factor contributing to ... her risk of developing lung cancer." (second emphasis added)).
211. See, e.g., Boerner, 394 F.3d at 598-99.
212. E.g., id. at 599.
213. See Liggett Group, Inc. v. Davis, 973 So.2d 467, 474 (Fla. Dist. Ct. App. 2007) ("[T]here is sufficient evidence from which the jury could reasonably have concluded that Davis, as an ordinary consumer, was not aware of the extent of the dangers of the product she was consuming.").
214. RESTATEMENT (SECOND) OF TORTS § 402A cmt. i (1965). Tobacco plaintiffs were able to win despite this because evidence came to light that certain cigarette companies altered the pH level in their cigarettes' smoke to maximize nicotine intake and the resulting addiction, to cigarettes.
215. See Boeken v. Philip Morris Inc., 26 Cal. Rptr. 3d 638, 649-50 (Cal. Ct. App. 2005).
216. RESTATEMENT (SECOND) OF TORTS § 402A cmt. i (1965).
217. RESTATEMENT (THIRD) OF TORTS § 2 (1998);
218. see also id. § 2 cmt. g. This is a separate issue from the three general requirements and is an addition to the newest version of the Restatement.
219. See Boeken, 26 Cal. Rptr. 3d at 650.
220. See id.
221. FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 159-60 (2000).
222. Id. at 159.
223. WOLFSON, supra note 35, at 22, 35.
224. Brown & Williamson Tobacco Corp., 529 U.S. at 139.
225. See Conley v. R.J. Reynolds Tobacco Co., 286 F. Supp. 2d 1097, 1105-06 (N.D. Cal. 2002).
226. See id.
227. Id. at 1107-08.
228. See Brief of Defendant, supra note 40, at 15 ("Plaintiff contends that Hollywood Tans ... has harmed her ... by unknowingly exposing [her] to potentially cancer causing ultraviolet light. The harm is the damage to a user's DNA from UV exposure caused by Defendant's tanning beds which Plaintiff contends in turn increases a user's risk of later developing skin cancer." (citations omitted)).
229. 21 C.F.R. § 1040.20 (2007).
230. See cases cited supra note 119.
231. See supra Sections II.C.-D.
232. RESTATEMENT (SECOND) OF TORTS § 402A cmt. i (1965).
233. Tanning beds contain a higher proportion of UVA rays and lower proportion of UVB rays than normal sunlight. See supra note 94 and accompanying text. Additionally, "the intensity of lights used in tanning devices is much greater ... than the intensity of UV rays in natural sunlight."
234. Fed. Trade Comm'n, supra note 6.
235. See Quinlivan Wexler LLP, The 3rd Restatement of Torts-Shaping the Future of Products Liability Law (1999), http://library.findlaw.com/1999/Jun/1/ 127691.html.
236. Tanning-Advisor.com, About High Pressure Tanning Beds ..., http://www.tanning-advisor.com/high-pressure-tanning-beds.html (last visited Aug. 20, 2008).
237. Year Round Brown, The Difference between a high-pressure bed and a low-pressure bed, http://www.yearroundbrown.com/article-highandlow.html (last visited Feb. 12, 2008; removed as of Aug. 20, 2008).
238. InSun, Inc., High Pressure Bed at InSun, Inc., http://www.insun.us/high- pressure-tanning-beds.php (follow "The Difference" hyperlink) (last visited Aug. 20, 2008).
239. Id.;
240. Year Round Brown, supra note 143.
241. As a tradeoff, UVB rays are reduced as compared to a normal, low-pressure tanning bed. Tanning-Advisor.com, supra note 142. UVA rays, as opposed to UVB rays, penetrate deeper into the skin, causing relatively more photo-damage: "Photo-damage is responsible for increased collagen and elastin break down and UVA can cause many forms of skin cancer." Yes They're Fake! Cosmetic Plastic Surgery & Beauty Network, Indoor Tanning, http://www.yestheyrefake.net/indoor_tanning.html (last visited Aug. 20, 2008).
242. RESTATEMENT (THIRD) OF TORTS: PRODUCTS LIABILITY § 2 cmt. e (1998). The illustration accompanying comment e provides an example:
243. ABC Co. manufactures novelty items. One item, an exploding cigar, is made to explode with a loud bang and the emission of smoke. Robert purchased the exploding cigar and presented it to his boss, Jack, at a birthday party arranged for him at the office. Jack lit the cigar. When it exploded, the heat from the explosion lit Jack's beard on fire causing serious bums to his face. If a court were to recognize the rule identified in this Comment, the finder of fact might find ABC liable for the defective design of the exploding cigar even if no reasonable alternative design was available that would provide similar prank characteristics. The utility of the exploding cigar is so low and the risk of injury is so high as to warrant a conclusion that the cigar is defective and should not have been marketed at all.
244. Id. at illus. 5.
245. Id. § 2 cmt. e.
246. Id. Use of this part of the Restatement is, however, quite limited. Although several courts have indicated this possibility in dictum, currently only New Jersey has explicitly implemented such a standard: "It is intended that such, a finding [under the exception] would be made only in genuinely extraordinary cases-for example, in the case of a deadly toy marketed for use by young children, or of a product marketed for use in dangerous criminal activities." Senate Judiciary Committee Statement, S. 2805-L.1987, c. 197
247. reprinted in N.J. STAT. ANN. § 2A:58C-1 (West 2000).
248. See Health Physics Society, Suntanning and Tanning Booths, http://www.hps.org/publicinformation/ate/faqs/tanningbooths.html (last visited Aug. 20, 2008) ("In tanning booths it is the ultraviolet (UV) light bulbs emitting UV radiation that causes the tanning.").
249. See FTC, Indoor Tanning, supra note 6.
250. See supra Section. II.C.
251. In the cigarette context, despite the many health dangers and seemingly nonexistent benefits of smoking, courts refused to find that cigarettes were unreasonably dangerous such that the dangers of smoking outweighed cigarettes' social use. Anthony J. Sebok, The "Big Fat" Class Action Lawsuit Against Fast Food Companies: Is it More Than Just a Stunt? (Aug. 14, 2002), http://writ.news.findlaw.com/sebok/20020814.html;
252. see also Gunsalus v. Celotex Corp., 674 F. Supp. 1149, 1159 (ED. Pa. 1987);
253. Hite v. R.J. Reynolds Tobacco Co., 578 A.2d 417, 420-22 (Pa. Super. Ct. 1990). The same was found when plaintiffs made claims against alcoholic beverage manufacturers alleging that the risks associated with alcohol consumption outweighed the utility of the product.
254. Dauphin Deposit Bank & Trust Co. v. Toyota Motor Corp., 596 A.2d 845, 849 (Pa. Super. Ct. 1991).
255. Overall, past judicial social utility analysis is sparse and ill defined.
256. The concept of social utility is not well defined and courts seem to make decisions relating to this term without clearly articulating what factors they are considering. See O'Brien v. Muskin Corp., 463 A.2d 298, 304 (N.J. 1983) (looking to "[t]he usefulness and desirability of the product-its utility to the user and to the public as a whole" without further explanation). In the tobacco context, some of the opinions reasoned that the courts prefer legislative rather than judicial action in determining that products should not be on the market.
257. See Gunsalus v. Celotex Corp., 674 F. Supp. 1149, 1159 (E.D. Pa. 1987). However, decisions regarding tobacco and alcohol lacked any sort of an analysis or explanation about a determination of social utility; instead, they only contained summarily dismissive statements giving the conclusion.
258. See id.;
259. Dauphin, 596 A.2d at 849.
260. See supra notes 128-134 and accompanying text.
261. See infra text accompanying notes 164-168.
262. Dietrich Hoffmann & Ilse Hoffmann, The Changing Cigarette, 1950-1995, 50 J. TOXICOLOGY & ENVTL. HEALTH 307, 310 (1997).
263. See id.
264. See FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 159-61 (2000).
265. Skin Cancer Found., Indoor Tanning-Magnitude of the Health Issue, 5 J. DRUGS DERMATOLOGY 193, 193 (2006) ("Commercial indoor tanning is unfortunately one of the fastest growing industries in the United States .... Reports indicate that between 1986 and 1996 there was a three-fold increase in the percentage of Americans using tanning beds." (footnotes omitted)).
266. Am. Acad. of Dermatology, Indoor Tanning Fact Sheet, http://www.aad.org/ media/background/factsheets/fact_indoortanning.html (last visited Aug. 20, 2008).
267. Am. Acad. of Dermatology, supra note 34. In contrast, there are a number of reasons people smoke cigarettes. These include stress reduction, appetite suppression, physical addiction, and social or cosmetic motivations.
268. Andrew W. Bergen. & Neil Caporaso, Cigarette Smoking, 91 J. NAT'L CANCER INST. 1365, 1368 (1999).
269. There is a counterargument, however, that lack of federal legislation indicates Congress's failure to recognize indoor tanning as a problem. Plaintiffs can argue that state and local legislation concerning indoor tanning, as well as statements by various organizations regarding indoor tanning's dangers, provide evidence to the contrary. See supra text accompanying notes 9-16, 24.
270. 21 C.F.R. § 1040.20 (2007).
271. Id. § 1040.20(c).
272. Id. § 1040.20(d).
273. Id.
274. VISCUSI, supra note 39, at 138.