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NEWS: Clare Dyer Tobacco firms fight ban on advertisements BMJ 2000; 320: 1427 [Full text]

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U.S. Litigation Against Cigarette Advertising: Precedents for the British Litigation

Leroy J Pletten   (31 May 2000)

U.S. Litigation Against Cigarette Advertising: Precedents for the British Litigation 31 May 2000
Leroy J Pletten, Medicine and Law History Substance Abuse Issues Counselor and Lecturer The Crime Prevention Group, Sterling Heights MI USA Send response to journal: Re: U.S. Litigation Against Cigarette Advertising: Precedents for the British Litigation	Here in the United States, the British cigarette-advertising-ban litigation is being followed with great interest. We have had a long experience with the issue of banning cigarette advertising. The U.S. Supreme Court has held that the U.S. Constitution does not preclude a total ban of cigarette advertising, Capital Broadcasting Co v John Mitchell, U.S. Attorney General, 333 F Supp 582 (D DC, 1971) aff'd 405 US 1000; 92 S Ct 1289; 31 L Ed 2d 472 (1972). The Supreme Court upheld a total ban on cigarette selling, Tennessee's 1897 cigarette ban for health reasons due to the hazard already being known, against tobacco lobby challenge, in the case of Austin v State of Tennessee, 179 US 343; 21 S Ct 132; 45 L Ed 2d 224 (1900). The Supreme Court has also upheld state authority to do tobacco inspection over tobacco lobby objection, in Turner v State of Maryland, 107 US 38; 2 S Ct 44; 27 L Ed 370 (Md, 1883) (a business practices case, affirming constitutionality of the state's tobacco inspection law). And in Felsenheld / Merry World Tobacco v United States, 186 US 126; 22 S Ct 740; 46 L Ed 1085 (1902), it upheld confiscating tobacco for having anything other than tobacco in the packages. Advertising bans are of course even lesser intrusive actions. As the cigarette hazard had already received judicial recognition long before 1911, that year the Supreme Court began upholding bans on tobacco advertising, in the cases of Fifth Ave Coach Co v City of New York, 221 US 467; 31 S Ct 709; 55 L Ed 815 (1911); Packer Corp v State of Utah, 285 US 105; 52 S Ct 273; 76 L Ed 2d 643 (1932); and Railway Express Agency, Inc v New York, 336 US 106; 69 S Ct 463; 93 L Ed 533 (1949). Judicial recognition of the tobacco hazard in that era already long included tobacco's role as a drug, in Carver v State of Indiana, 69 Ind 61; 35 Am Rep 205 (1879), Mueller v State of Indiana, 76 Ind 310; 40 Am Rep 245 (1881), and State of Missouri v Ohmer, 34 Mo App 115 (1889). Judical recognition already existed of the second-hand smoke hazard to nonsmokers, State v Heidenhain, 42 La Ann 483; 7 So 621; 21 Am St Rep 388 (1890); and of the fire hazard, in Commonwealth v Thompson, 53 Mass 231 (1847). The above cited Austin case recognized the hazard to smokers themselves. The danger to children was also recognized, as cited by a Michigan House of Representatives Committee (1889). Michigan banned cigarettes in 1909. Iowa had already done so in 1897. Once again, in 1971, it was again judicially recognized that the cigarette hazard is beyond dispute, Larus & Bro Co v Federal Communications Comm, 447 F2d 876, 880 (CA 4, 1971). Fraudulent, false, and deceptive tobacco advertising can be banned, pursuant to a long line of case law, e.g., In the Matter of R. L. Swain Tobacco Co, Inc, 41 FTC 312 (1945); P Lorillard Co v Federal Trade Commission, 186 F2d 52 (CA 4, 1950); Forster v R J Reynolds Tobacco Co, 437 NW2d 655 (Minn, 1989); Gilboy v American Tobacco Co, 582 So 2d 1263 (La, 1991); and Burton v R J Reynolds Tobacco Co, 884 F Supp 1515 (D Kan, 1995). A detailed discussion of authority to abate nuisances such as odors and hazards from toxic substances is in California Reduction Co v Sanitary Reduction Works, 199 US 306 (27 Nov 1905) (case cited for its lengthy listing of local-authority-to-act precedents, not for the specific subject matter). In addition, pursuant to the principles in Union Pac Ry Co v McDonald, 152 US 262, 269-284; 14 S Ct 619, 622-627; 38 L Ed 434, 436-443 (5 March 1894), an attractive nuisance case, companies must protect against and even ban that which is attractive to children and can foreseeably harm them, and if they do nothing, they are liable for all resultant harm, from the failure to have taken such precautions. Banning cigarette advertising due to its aiding and abetting in the violation of cigarette sales laws has also been upheld. See, e.g., Cippollone v Liggett Group, Inc, 505 US 504; 112 S Ct 2608; 120 L Ed 2d 407 (1992) Anheuser-Busch v Mayor and City Council, 855 F Supp 811 (D Md, 1994), aff'd 63 F3d 1305 (CA 4), remanded, 517 US 1206; 116 S Ct 1821; 134 L Ed 2d 927, aff'd 101 F3d 325 (CA 4, 1996) Penn Advertising v Mayor & City Council of Baltimore, 862 F Supp 1401 (D Md, 1994), aff'd 63 F3d 1318 (CA 4, 31 Dec 1995), remanded 518 US 1030; 116 S Ct 2575; 135 L Ed 2d 1090 (1996), aff'd 101 F3d 332 (CA 4, 1996) cert den 117 S Ct 1569 (1997). There is also the issue, or duty, of warning nonsmokers of the danger of toxic tobacco smoke (TTS), involuntary smoking, second-hand smoke, Shaw v Brown & Williamson Tobacco Corp, 973 F Supp 539 (D Md, 1997) (citing issues of negligent misrepresentation and failure to warn; and intentional misrepresentation), and Wolpin v Philip Morris, Inc, 974 F Supp 1465; 1997 US Dist LEXIS 12915; 1997 WL 535218 (D SD Fla, 1997). “[R]esearch has confirmed that ‘tobacco advertising plays an important role in encouraging young people to [smoke].’” Jon D. Hanson & Douglas A. Kysar, "Taking Behavioralism Seriously: Some Evidence of Market Manipulation," 112 Harvard Law Review 1420, 1508 (1999) (quoting John P. Pierce, Lora Lee & Elizabeth A. Gilpin, "Smoking Initiation by Adolescent Girls, 1944 Through 1988: An Association with Targeted Advertising," 271 J Am Med Ass'n 608, 611 [1994]). Advertising that entices children to use a product that it is illegal for them to purchase is an unfair advertising practice. Mangini v R J Reynolds Tobacco Co, 793 F Supp 925 (ND Cal, 1992); 21 Cal Rptr 2d 232 (Cal App 1st, 1993) aff'd 7 Cal 4th 1057; 31 Cal Rptr 2d 358; 875 P2d 73 (Cal, 1994) cert den 513 US 1016; 115 S Ct 577; 130 L Ed 2d 493 (1994). Later, in R. J. Reynolds Tobacco Co v Federal Trade Commission, 14 F Supp 2d 757 (17 July 1998), that company sued the FTC in an unsuccessful effort to get a court order to ban FTC action against "Joe Camel" advertising. This unsuccessful effort would seem to parallel the current litigation. The recent case of Greater New York Metro. Food Council, Inc v Giuliani, No 99-7006, 195 F3d 100; 1999 WL 965691 (CA 2, NY, 25 Oct 1999) was favorable to well-written cigarette advertising restrictions. And related decisions have recently occurred in U.S. federal district courts: Lorillard Tobacco Co, et al v Thomas Reilly, Attorney General of Massachusetts, Civ Action No. 99-11118-WGY, 76 F Supp 2d 124 (D Mass, 2 Dec 1999), and Lorillard Tobacco Co, et al v Thomas Reilly, Attorney General of Massachusetts, Civ Action No. 99-11118-WGY (D Mass, 24 Jan 2000). Advertising (words) can be banned pursuant to their role in aiding and abetting violation of law. Nothing in freedom of the press allows aiding and abetting violation of laws (example, yelling fire in a crowded theatre, or a stick-up note at a bank!). Indeed the writing itself—the very words—constitutes the crime!! See, e.g., Schenck v United States, 249 US 47; 39 S Ct 247; 63 L Ed 470 (1919) (noting tendency and effect, natural and probable consequences, of words); Frohwerk v United States, 249 US 204; 39 S Ct 249; 63 L Ed 561 (1919) (just a few words may be enough to cause the effect); Debs v United States, 249 US 211; 39 S Ct 252; 63 L Ed 566 (1919) (words posing a "clear and present danger" of bringing about the illegal acts); Gitlow v New York, 268 US 652; 45 S Ct 625; 69 L Ed 1138 (1925) (re words "inimical to the public welfare," "suppress the threatened danger in its incipiency"); and Whitney v California, 274 US 357; 47 S Ct 641; 71 L Ed 1095 (1927) (re prosecuting user for words "menacing the peace and welfare of the state"). Tobacco's role in cancer had medical recognition by that 1920's era. The tendency, effect, natural and probable consequence, of pro-tobacco words is, in Royal Society of Medicine words, a "holocaust," the ultimate evil "inimical to the public welfare" which must be suppressed "in its incipiency" (typically, media words). This is standard criminal law, establishing the case for prosecuting pro-tobacco advertisers, publishers, writers, speakers, as per the long-established case law. When writings, books, newspaper ads, commercials, etc., aid and abet causing the death of a third party, the publishers and advertisers are liable in addition, under civil law. The family or estate of the deceased can receive money damages to the extent that the words aided and abetted in causing the death. Nothing in freedom of the press allows aiding and abetting unlawful activity, see Paladin Enterprises, Inc v Rice, 128 F3d 233 (CA 4, 1997) cert den 523 US 1074; 118 S Ct 1515; 140 L Ed 2d 668 (1998). Cigarette advertising leads not just to cigarette-caused deaths from bad health, it also leads to cigarette-caused fire deaths. In law, it is illegal to cause death to people via fires resultant from cigarettes. Example: In a death case of two firemen killed due to discarded cigarettes, a court upheld criminal charges as a "toxic substance" [such as tobacco] "is the prototype of forces" or substances "which the ordinary man knows must be used with special caution because of the potential for wide devastation [universal malice]," Commonwealth v Hughes, 468 Pa 502; 364 A2d 306, 311 (1976). In fact, the fire hazard had already been judicially recognized over a century earlier, in 1847, in the case of Commonwealth v Thompson, 53 Mass 231 (1847). Cigarettes contain toxic chemicals and have a record of adulteration thus causing "wide devastation," not just the "potential" for it. By 1836, it was already well-established "that thousands and tens of thousands die of diseases of the lungs generally brought on by tobacco smoking. . . . How is it possible to be otherwise? Tobacco is a poison. A man will die of an infusion of tobacco as of a shot through the head." —Samuel Green, New England Almanack and Farmer's Friend (1836). Americans took heed. Result: Declining U.S. tobacco use, reported by J. B. Neil, 1 The Lancet (#1740) p 23 (3 Jan 1857). What changed to bring use up? Answer: Media advertising. Clearly, eliminating tobacco advertising is essential in eliminating cigarette use. We have already lost approaching two centuries, since 1836, due to failure to have done so. Every success is wished for the government's effort to ban cigarette advertising. Every judicial means to do so, including criminal prosecutions under already extant law, should be utilized. More details on this subject are at the anti-cigarette advertising website.