Against Tobacco Industry

Just a few weeks ago, the California Supreme Court ruled that lawsuits under the Consumer Legal Remedies Act can only be filed by individuals who suffer real damage from unlawful business practices.
But during oral arguments on Tuesday it wasn’t clear where the court stood on applying that same rule to every participant of class actions filed under the state’s Unfair Competition Law.
Careful questioning and poker faces by the justices left the outcome mostly a mystery in a case of major interest to the tobacco industry and more than 25 amici curiae who weighed in on one side or the other. But a couple of amici on the consumers’ side predicted the justices would reverse the appellate court, which upheld class decertification.
The underlying suit, filed 12 years ago, accused Philip Morris USA Inc. and five other tobacco manufacturers of violating the UCL and the state’s False Advertising Law by allegedly denying links between smoking and serious illnesses. The suit also accused the companies of marketing cigarettes — often to minors during the Joe Camel campaigns and other youth promotions of the ’90s — as having no additives and being non-addictive.
“The massive, long-term public campaign by the tobacco industry worked beautifully,” plaintiffs lawyers wrote in Supreme Court briefs. “People who were already addicted to cigarettes used the industry’s propaganda to rationalize their refusal to stop smoking and people who wanted to smoke (usually adolescents) used it as justification to start smoking.”
The suit doesn’t seek damages, just injunctive relief and restitution for money plaintiffs spent on cigarettes.
San Diego County Superior Court Judge Ronald Praeger granted class certification in 2001, allowing smokers who lived in California between June 10, 1993, and April 23, 2001, to pursue claims under the UCL and FAL. But after voters passed Proposition 64 in 2004, he decertified the class, saying that under the ballot measure’s terms, individual plaintiffs and class members didn’t have standing to sue unless they actually suffered harm by loss of money or property.
San Diego’s 4th District Court of Appeal affirmed in 2006.
During Tuesday’s oral arguments in San Francisco, Mark Robinson Jr., a partner with Newport Beach’s Robinson, Calcagnie & Robinson who represents the purported class, argued that Prop 64 doesn’t require all members of a class action to have suffered actual injury. Only the class representatives — in this case smokers Willard Brown, Damien Bierly and Michelle Buller-Seymore — must show actual harm.
Proposition 64, Robinson argued, “changed the standing only. It said a class rep has to be affected, has to have an injury in fact.”
He maintained that individuals who have interpreted Prop 64, including the state’s legislative analyst, “talk about the claimant” having to meet standing requirements. “I take that to mean only the class rep,” and not the whole class, Robinson said.
Justice Joyce Kennard, who seemed sympathetic to Robinson’s argument, gave him a boost by pointing out that federal case law supports Robinson’s stand. (In the absence of Chief Justice Ronald George, who recused himself for unexplained reasons, Kennard was presiding over the arguments, and 4th District Court of Appeal Justice Eileen Moore was sitting pro tem.)
There was some skepticism, though. Justice Marvin Baxter wanted to know whether class members who never saw or heard the allegedly misleading ads would have standing to sue, and pointed out that some of the individual plaintiffs in the case said ads weren’t directly responsible for their choices to smoke.
“Would that person be eligible?” he asked.
Robinson said all the class needs to show is whether the ads had the ability to deceive customers.
As he put it in his court papers: “No showing of actual deception, reliance or damages is necessary. Rather, a plaintiff seeking injunctive or restitutive relief on behalf of others need only demonstrate that the defendant’s conduct was ‘likely to deceive.'”
Surprisingly, Daniel Collins, a partner in Los Angeles’ Munger, Tolles & Olson who represented the tobacco companies, agreed that Prop 64 refers to a claimant alone, but argued that well-settled class certification law requires each class member to have standing to bring a suit on his or her own behalf.
“So,” Justice Baxter asked, “if a private individual couldn’t satisfy standing by filing his own lawsuit, then that same individual shouldn’t be allowed to proceed as a member of a class? Is that what you’re saying?”
“That’s correct,” Collins answered. “There has to be that commonality of interests.”
In court papers, Collins had argued that his opponent’s position on standing “would create an anomalous situation in which the class representatives, by definition, would have UCL claims that are not typical of the absent class members.”
He also contended that Judge Praeger got it right when he ruled that the plaintiffs’ claims raised primarily individualized issues, particularly regarding how the alleged misleading ads affected each person’s decision to smoke or not.

Tacoma say – smoke-free housing options

Tacoma City Human Rights and Human Services Department recently briefed city leaders on “smoke-free housing options.”
During the meeting Monday, the department made no recommendations, said executive director John Briehl, and the city made no motions.
Still, the idea of a smoking ban has stirred mixed reactions in at least one landlord.
“What Tacoma is doing I am totally in favor of,” said property manager Kelly Halligan. “It’s just that how do you enforce it? Who’s going to pay for the enforcement? And again, it’s putting government onto private property issues.”
Halligan said she banned indoor smoking in her apartment complex in Federal Way in December, but as a Tacoma resident, she said she’s concerned how the city would enforce a blanket smoking ban ordinance for residential homes.
Still, a full ban is only one option on the staff report. It also suggests ideas like regulating common areas where smokers can light up, creating smoking “buffer zones,” and offering tax abatements or other incentives to landlords who adopt smoke-free residences.
“When considering a smoke-free ordinance, appropriate procedures should be followed that provide for notice and a forum for public comment,” the report stated.
Tacoma Mayor Bill Baarsma says the briefing resulted from citizens complaining about secondhand smoke health concerns in apartment complexes.
“[It’s still] too early for an ordinance,” said Baarsma. “I still want to hear from [Pierce County-Tacoma] City-County Health Department.”
Still, Baarsma, who said he’s lost family members due to smoking-related lung cancer, called secondhand smoke “a very serious health threat… something that has to be dealt with.”
The report says secondhand smoke causes up to 65,000 early deaths in the U.S. each year, and is the country’s third leading preventable cause of death.

Stop using electronic cigarettes

Hong Kong’s Department of Health Wednesday called on smokers not to use electronic cigarettes as the safety, efficacy and quality of such kind of product have to be established.
A spokesman for the department said Wednesday that initial laboratory analysis on an electronic cigarette sample revealed that it contained nicotine.
The spokesman said under the Pharmacy and Poisons Ordinance, electronic cigarettes containing nicotine and marketed as tobacco cessation products were classified as pharmaceutical products requiring registration in Hong Kong.
The department raided a shop in Sham Shui Po earlier on Wednesday, resulting in the seizure of nine types of electronic cigarettes. It has also instructed the parties concerned to remove electronic cigarette advertisements and promotional materials from their websites.
The spokesman said possession or sale of an unregistered pharmaceutical product, and possession of Part I poisons without authority, were both liable on conviction to a 100,000 HK dollars (about 12,820 U.S. dollars) fine and two years’ imprisonment.
He urged members of the public who have been using electronic cigarettes to stop using them immediately.

House committee rejects alternative to FDA tobacco bill

The House Energy and Commerce committee today rejected a Republican substitute to the FDA tobacco bill by a vote of 13 in favor and 34 opposed.
The Republican amendment was offered by Rep. Steve Buyer of Indiana.
Buyer’s amendment would have created a new tobacco harm reduction center within the Department of Health and Human Services. The center would combine smoking cessation programs with industry strategies to reduce the harm from tobacco products, Republicans said.
Aides to Sen. Richard Burr, R-N.C., said he may introduce a similar bill in the Senate.
Meanwhile, U.S. Rep. Henry Waxman, D-Calif., has reintroduced a bill that would allow the Food and Drug Administration to regulate cigarettes and other tobacco products. The House Commerce and Energy Committee is addressing the FDA tobacco bill today.
The main intent of the Youth Prevention and Tobacco Harm Reduction Act is:
* Establishing a Tobacco Harm Reduction Center within the U.S. Health and Human Services Department rather than through the Food and Drug Administration.
* Combining smoking-cessation programs with harm-reduction strategies, including increased research on smokeless-tobacco products and educating smokers about the potential reduced risk of harm in using those products.
* Protecting tobacco farmers from potential changes to farming practices.
“Adult tobacco consumers have a right to be fully and accurately informed about the risks of serious diseases, the significant differences in the comparative risks of different tobacco and nicotine-based products and the benefits of quitting,” according to the language in the House bill.
“This information should be based on sound science. Governments, public health officials, tobacco manufacturers and others share a responsibility to provide adult tobacco consumers with accurate information about the various health risks and comparative risks associated with the use of different tobacco and nicotine products.
“Tobacco products should be regulated in a manner that is designed to achieve significant and measurable reductions in the morbidity and mortality associated with tobacco use.”
By comparison, the potential FDA tobacco regulation bill does not carve out a niche for harm-reduction tobacco products.
“The Waxman bill simply keeps the same playing field. It keeps Philip Morris and Marlboro dominant,” said Bill Godshall, the executive director of Smokefree Pennsylvania.
Analysts have said that Philip Morris USA helped write the language in the proposed FDA tobacco-regulation bill.
“We’re against all tobacco, but where we disagree with Waxman and the Campaign for Tobacco-Free Kids in their focusing on kids,” Godshall said.
“We’re focusing on the 45 million people who are smoking today. Our goal is to push smokeless. It is proven to be less harmful than cigarettes, and the public needs to know it. Waxman’s bill treats all tobacco as if they’re equally bad, and that’s just not the case.”

What Hurts Smokers And Helps Cigarette Companies?

Congress is about to begin deliberations of two competing approaches to tobacco regulation. The outcome of the debate will have an impact on business–and public health–for decades to come.
The first approach, known as the Kennedy-Waxman bill, will give the beleaguered Food and Drug Administration authority to regulate tobacco. On its face, this is a good thing. After all, cigarettes are the leading preventable cause of death in the United States.
But the devil is in the details. First of all, the Kennedy-Waxman bill, named after its sponsors Sen. Ted Kennedy, D-Mass., and Rep. Henry Waxman D-Calif., was in fact written by Altriaand an activist group, the Campaign for Tobacco Free Kids (CFTFK).
The bill has numerous provisions that, from a public health perspective, actually make matters worse, rather than better.
For instance, the bill will make it virtually impossible for companies to promote less harmful forms of tobacco. If the bill passes, we won’t replicate the good news coming out of Sweden, where tobacco-related deaths plummeted when smokers switched from cigarettes to the less harmful snus, or smokeless tobacco.
Snus is a pouch of tobacco that gives smokers the nicotine they crave without the myriad harmful chemicals that come from burning and inhaling tobacco. The risk of oral cancer from smokeless tobacco is low–far lower than the oral cancer risk from smoking cigarettes.
And switching from cigarettes to snus eliminates the risk of heart disease lung cancer and the other systemic diseases related to smoking. And of course, there’s no secondhand smoke from snus.

Smoking ban clears first hurdle

A proposed state ban on smoking in public places passed its first test Tuesday in a legislative committee.
In one potential sign of changing fortunes, the proposal now has the unanimous backing of the N.C. House’s Buncombe County delegation, which voted 2-1 against a ban two years ago.
The House Health Committee approved the measure on a voice vote Tuesday with support from Rep. Bruce Goforth. Goforth switched his vote from 2007 when he was one of a minority of Democrats whose opposition kept a ban from passage on the House floor.
Goforth said he saw the issue then as one of property rights but since has been approached by local restaurant and hotel owners who want to go smoke-free but would prefer to tell customers it’s a state mandate.
“The cost of repairs, the cost of repainting, the cost of ventilation for these smoking areas is just tremendous,” he said.
Rep. Jane Whilden said she supports the ban, joining fellow Buncombe Democrats Goforth and Rep. Susan Fisher. Whilden’s predecessor, Republican Rep. Charles Thomas, voted no in 2007.
House Majority Leader Hugh Holliman’s bill would forbid smoking in restaurants, bars and most other indoor public places and workplaces with the goal of protecting workers and customers from secondhand smoke.
Hotels would have to designate at least 80 percent of their rooms as nonsmoking.
The N.C. Restaurant and Lodging Association does not oppose Holliman’s proposal, and most of the group’s members support it, president Paul Stone said. That’s because this version is a wider ban than the one that targeted restaurants in 2007, he said.
Vincenzo’s Ristorante & Bistro owner Dwight Butner, for one, said he doesn’t have a problem with a broad ban — although he would prefer that government leave it up to him whether to go nonsmoking. He allows smoking after 9:30 p.m. in his downstairs bistro in Asheville but prohibits it in his dining room.
“I didn’t feel like restaurants and bars as an industry needed to be singled out for special treatment,” Butner said.
“If they’re passing a generalized ban with a few exceptions, I don’t have as much objection to it as I did.”
Legislators of both parties spoke in favor of a ban Tuesday before the health panel moved it on to its next stop, a House judiciary committee. The panel first rejected an attempt by an opponent, Rep. Cary Allred, R-Alamance, to exempt restaurants.
Another opponent, Rep. Marilyn Avila, R-Wake, called it a “Draconian” measure.
“I’m not saying that smoking is not a hazard. I agree,” Avila said. But the ban is “a hazard to people’s freedom of choice and personal property rights,” she said.
But the committee also heard personal stories of family members lost to smoking, from legislators and from Peg O’Connell, widowed this year by the death of former Insurance Commissioner Jim Long.
“Jim died of a stroke because he could never quit smoking,” O’Connell told the committee.
O’Connell said her late husband also encountered harmful secondhand smoke. “Jim spent decades in smoke-filled rooms, many of them in this building,” she said in the legislative office building. “As a smoker who was trying to quit, he wanted more places to be smoke-free.”

Legislation will place tobacco under the control of the Food and Drug Administration

In what appears to be the best chance since public health groups started pushing for it in the 1970s, Congress is poised to regulate tobacco, a product linked to 1,200 deaths each day but sold largely unfettered for centuries.

Legislation that the House Energy and Commerce Committee will take up today would place tobacco under the control of the Food and Drug Administration. Among other things, the bill would restrict the ways tobacco companies market cigarettes, require them to disclose the ingredients in their products and place larger warning labels on packages, and give the FDA the authority to require the removal of harmful chemicals and additives from cigarettes.
The legislation also seeks to crack down on techniques tobacco companies have used to attract children and teenagers, making it illegal to produce cigarettes infused with strawberry, grape, cloves and other sweet flavors. And it would prohibit tobacco makers from using the terms “low tar” and “light” when describing their products, suggesting a health benefit that scientists say does not exist.
Still, some critics say the bill, largely the product of years of negotiation between cigarette giant Philip Morris and the advocacy group Campaign for Tobacco-Free Kids, does not go far enough.
“This is a big gift to Philip Morris and a big scam,” said Joel L. Nitzkin, chairman of the tobacco-control task force of the American Association of Public Health Physicians. “Our initial impression was, ‘Gee, this would be great.’ But when we read through the entire 160 pages, we were horrified by what we saw.”
Nitzkin said, for instance, that the bill has a grandfather clause that protects products currently on the market but creates hurdles for new products such as low-nicotine lozenges that deliver a nicotine dose but are not smoked and therefore pose no risk of lung disease and a much-reduced chance of heart disease.
Tobacco is linked to the death of more than 400,000 Americans each year and costs the nation $96 billion in health care annually, according to the Campaign for Tobacco-Free Kids. Every day, more than 1,000 children and teenagers become regular smokers.
“It’s crazy — here’s this product that kills half of its longtime users, and there are very few restrictions on how it’s made and marketed,” said Patricia McDaniel, a sociologist at the University of California at San Francisco who has studied the history behind the bill.
“There’s a lot of opportunity for the FDA to do some pretty remarkable things: adding more visible warning labels, banning misleading descriptors, some authority over ingredients and allowing the FDA to prohibit certain types of marketing,” she said. “But there are a lot of unknowns. And there are questions about whether the FDA is the agency to regulate tobacco, especially now with the trouble it’s having regulating food and drugs.”
What is more, consumers may get the impression that tobacco is safe if it is regulated by the government, McDaniel said.
Diana Zuckerman, president of the National Research Center for Women and Families, acknowledged the contradiction.
“Cigarettes and cigars are drug-delivery systems, delivering an addictive drug — nicotine — in a product that kills when used as directed,” said Zuckerman, whose group supports the bill. “How can the FDA justify regulating, rather than banning, those products? On the other hand, if the FDA regulates tobacco products, it can stop misleading advertising and help prevent the sale of tobacco products to children. That will save lives.”

Smoking prevention groups go after tobacco ads targeting gays

The cigarette pitch demands a second look.
Two ripped, rakish men and one lean, pristine hound pause, inexplicably, in the cool shallows of a calm green sea.
“How gay is this ad?” R.E. Szego, a Portland tobacco-prevention specialist, asks when she sees such an image.

It’s a sincere question, not a slam.
Wooed for years by tobacco companies — who lavish free merchandise on their bars and clubs, sponsor their events and advertise heavily in their publications — gays, lesbians and bisexuals remain hooked on cigarettes, even as the general population smokes less.
But public health specialists are optimistic that a new ban on smoking in Oregon bars will cause a decline in the smoking rates of gays and lesbians, who tend to pick up the habit as teens coming to terms with stigma surrounding their sexual identity.
“If you were coming up gay, it used to be the only place you got to meet was in a bar,” says Michael Kaplan, executive director of Cascade AIDS Project and a former pack-a-day smoker. “If you wanted to fit in, you’d smoke.”
About one in three gay, lesbian and bisexual Oregonians smoke, compared to about one in five smokers in the state’s overall population, according to the public health division of the Oregon Department of Human Services. The disparity is worse among gay, lesbian and bisexual teens, who are 2 1/2 times more likely to smoke than their straight peers. What’s more, half of all gay Oregon smokers say they don’t want to quit.
Nationally, tobacco-related illnesses such as cancer and heart disease kill about 30,000 gays, lesbians and bisexuals each year, reports the American Cancer Society. AIDS kills about half as many, straight people included, according to the Centers for Disease Control and Prevention.
Still, tobacco use is rarely identified as a leading gay public health issue and attracts little in the way of community outrage or prevention funding. A 2008 survey of leaders of 74 lesbian, gay, bisexual and transgender organizations found most didn’t see tobacco use as a pressing health issue, and about one in five organizations had accepted tobacco industry funding.
Tobacco companies, says one anti-smoking advocate, have made “it look like they’re our allies in the fight for civil freedoms.” Some research shows gays and lesbians are pleased with the tobacco companies’ marketing overtures because they’re accustomed to other corporations spurning them.
Tobacco foes call the cigarette companies’ marketing techniques “gay vague.” It’s a love-that-dare-not-speak-its-name style of advertising heavy on images of hearty women fishing in the woods and beefy bartenders leveling come-hither gazes at … no one in particular.
Maybe another man.
Maybe not.
Tobacco-prevention campaigns take a far less ambiguous approach.
In Las Vegas, the public health department sends hot men wearing only tightie-whities out to gay bars and clubs to promote smoke-free nights and host the ideal, young and sexy party scene.
In Philadelphia and three other American cities, a cancer support group sponsored a “delicious lesbian kisses” campaign, with ads teasing, “Let’s put your lips to better use.”
Preaching doesn’t work, and neither does subtlety, says Szego, who runs Breathe Free, an Oregon public health department tobacco prevention program.
“Gay youth don’t see themselves living as long a life as straight people do,” Szego says.
Szego only occasionally employs the shock-and-awe technique. For example, this winter she visited a gender-bending dance fest with a name we can’t repeat in this newspaper and passed out swag with catchy messages that we also can’t repeat. That was intended to drum up excitement for Oregon’s new smoking ban, as are cleaning parties Szego is organizing to scrub the smoke smell from Portland’s gay bars.
More often, Szego gears her messages to teens, hoping to reach them before they reach for cigarettes. She gives her “How Gay Is This Ad” presentation at youth conferences and community events. She distributes posters that take digs at tobacco companies for championing politicians who are hostile to gay causes: “Why do we support them when they don’t support us?” goes one tagline.
One of Szego’s favorite posters depicts the rainbow colors of the pride flag, with a cigarette embedded in one stripe.
“When did smoking become part of us?” it asks.
Subtle, yes. But hardly vague.
Source: Oregonlive