Smoking ban booted by council members

City Council’s meeting was cut short Monday – and a controversial smoking ban abruptly dismissed — after advocates withdrew their support following a series of amendments they said watered down the proposal.
Representatives of local advocacy group One Air Alliance said they will now seek to place the issue before voters through an initiative petition.
The ordinance, sponsored by Mayor Jim O’Neal and Councilmembers Dan Chiles, John Rush and Cindy Rushefsky, would have replaced current city restrictions on smoking with a more all-encompassing one on smoking in workplaces and buildings open to the public, as well as some outdoor areas.
Only private residences and designated hotel rooms would have been exempt. Bars and restaurants, 63 of which currently make use of exemptions in the current law, would have been able to allow smoking only on outdoor patios or sidewalk cafes.
O’Neal offered two amendments before the public comment period began Monday. One, he said, corrected an inadvertent change that would have banned smoking in private homes where meetings are held.
The other would have created an exception for tobacco shops, as long as their primary business was the blending and sale of tobacco products and they were not located in another establishment such as a bar or restaurant.
Both changes easily passed. Then Councilman Nick Ibarra, taking issue with a clause calling for the ordinance to be “liberally construed” in favor of prohibition, moved that the language be struck from the bill.
That change also was approved (with all of the sponsors but Chiles voting against). After a few more questions, Ibarra offered another amendment, this time adding an exemption for a string of fraternal and veterans organizations as well as bingo halls.
Ibarra said that, if the city was going to infringe on the liberties of any residents, “I would ask that we not do it for the people who protect those liberties,” drawing applause from part of the standing-room-only crowd.
O’Neal, calling for order, argued against the exemption, saying it went against the intent of the bill to protect the health of workers, primarily in the service industry.
“I will not place their well-being on the altar of tobacco,” he said.
The amendment passed, as he and the ban’s other sponsors were outnumbered by the remaining five councilmembers.
City Attorney Dan Wichmer, expressing concern that the specific list of exempt organizations would be better expressed with a more general definition, asked for a few minutes to craft substitute language.
Council heard from the first few of 45 scheduled speakers before he returned with an amended version, adopted 6-3, that exempted private, non-profit clubs with “fraternal or benevolent” purposes. Wichmer said existing bingo halls run by such organizations would be included.
As public comment resumed, former supporters immediately began rejecting the amended ordinance.
“You’re opening the door too wide,” said Josh Garrett of the American Cancer Society. “I don’t know why smokers are the only ones with a right to choose.”
Garrett said the ACS could not support the amended version. Carrie Reynolds of One Air Alliance withdrew that group’s support, as well.
“We cannot stand behind this bill,” she said, comparing the issue to child labor laws and others aimed at protecting public health.
Rush, one of the sponsors, asked Reynolds if she wanted council to vote against the bill after “Mr. Ibarra has successfully gutted this ordinance.”
She said yes. “I don’t think this ordinance is good for the city of Springfield.”
Several council members who had supported the amendment weighed in with questions and comments after that.
“We’re being asked to outlaw a product that is legal in all 50 states … ” said Councilman Bob Stephens.
While some described the ordinance’s intent as protecting worker safety, “what we have here goes far beyond a workplace safety issue,” he said.
Reynolds said that, unlike the decision to drink alcohol or eat fatty foods, “it is not a personal choice to work or go into a public establishment and be surrounded by smoke.”
Reynolds earlier had described her personal experience battling cancer while pregnant. “If I had been working as a server in a restaurant (that allowed smoking) … I would have had to give up my job or I would have died.”
That prompted a question from Councilman Jerry Compton, who asked Reynolds her opinion on pregnant women working in hazardous jobs such as firefighting or the military. “How should we regulate that?”
“I certainly think a woman has a right to choose where she works,” Reynolds said, later adding: “A lot of people, their hand is forced to working in a (smoking) environment to support their family.”
Moments later, O’Neal announced that he and the other sponsors would voluntarily withdraw the ordinance.
“What I hope happens is the folks from One Air Alliance will start a petition … we’ll let the city vote on this,” he said.
According to the city, the group must gather at least 1,181 signatures to get the issue on a public ballot.
“Let’s do it right or not do it at all,” O’Neal added after the meeting, expressing confidence the group had the resources and support to get the signatures. “And we will pass it.”
Reynolds and her co-chair, Katie Towns-Jeter, said the group will begin making plans for the effort soon. Both said they were disappointed by the outcome of Monday’s meeting.
“But we’re not going to compromise, because it’s an issue of public health,” Towns-Jeter said. “We feel confident we can get the petition supported.”
Ibarra, who said he was as surprised by the abrupt end as anyone, said he “just did what I thought was right.”
Ibarra said he would not have supported the ordinance even with the changes made, but offered the amendments to include “needed exemptions” on the chance the larger bill would be passed.
“I felt like it was a direct infringement on property rights and personal liberty,” he said.
By Amos Bridges
News-Leader, June 29, 2010

Five States to Increase Cigarette Taxes on July 1

Washington, D.C. – To reduce smoking and combat budget deficits, five states will implement cigarette tax increases on July 1.
The five states are: New York, $1.60 increase to $4.35 per pack; Hawai’i, 40 cents to $3 per pack; New Mexico, 75 cents to $1.66 per pack; South Carolina, 50 cents to 57 cents per pack; and Utah, $1 to $1.70 per pack. On May 1, Washington increased its cigarette tax by $1 to $3.025 per pack.
New York’s increase will give it the highest state cigarette tax at $4.35 per pack, while South Carolina’s increase — its first since 1977 — means it will no longer have the lowest cigarette tax in the nation. Missouri will now have the lowest cigarette tax at just 17 cents a pack. After the July 1 increases, the average state cigarette tax will be $1.45 per pack, while the federal government levies an additional $1.01 per pack.
Also taking effect this week, a new federal law will curb tobacco tax evasion and curtail sales of low-cost cigarettes and other tobacco products over the Internet and through the mail. As required by the law, the Prevent All Cigarette Trafficking (PACT) Act, the U.S. Postal Service on Tuesday will institute a ban on mailing tobacco products (with very minor exceptions). The law also requires Internet tobacco sellers to pay all applicable taxes and affix tax stamps before delivery to any customer; requires that age and identification of purchasers be checked at both purchase and delivery; and provides government officials with new tools to crack down on tobacco tax evasion.
“These actions to increase tobacco taxes and prevent tax evasion are a huge victory for the nation’s health that will save many lives and billions of dollars in tobacco-related health care costs,” said Matthew L. Myers, President of the Campaign for Tobacco-Free Kids. “Higher tobacco taxes continue to be a win-win-win for the states — a health win that reduces smoking and saves lives, a revenue win that helps balance budgets and fund critical programs, and a political win that is popular with voters. We applaud the state and federal officials who have supported these important measures.”
The evidence is clear that increasing the cigarette tax is one of the most effective ways to reduce smoking, especially among kids. Scientific studies show that every 10 percent increase in the price of cigarettes reduces youth smoking rates by about 6.5 percent and overall cigarette consumption by about four percent. The combined effect of the state cigarette tax increases approved so far this year will be to:
* Prevent more than 262,000 kids from starting to smoke;
* Spur more than 140,000 adult smokers to quit;
* Prevent more than 120,000 smoking-caused deaths;
* Produce more than $5.9 billion in long-term health care savings;
* Raise more than $561 million in annual revenue.
States with the lowest cigarette tax rates are Missouri (17 cents per pack), Virginia (30 cents), Louisiana (36 cents), Georgia (37 cents) and Alabama (42.5 cents).
The Campaign for Tobacco-Free Kids urges all states to increase tobacco taxes as a proven way to reduce smoking and other tobacco use, save lives and raise revenue. The Campaign also urges states to use more of their tobacco tax and tobacco settlement revenues to fund tobacco prevention and cessation programs at levels recommended by the U.S. Centers for Disease Control and Prevention.
Tobacco use is the leading preventable cause of death in the United States, killing more than 400,000 people and costing $96 billion a year in health care costs. Every day, another 1,000 kids become regular smokers — one-third of them will die prematurely as a result.
More information on tobacco taxes, including tax rates in each state:
More information on the PACT Act:
Campaign for Tobacco-Free Kids

Smoking ruling to be on Wed

With only hours before a statewide smoking prohibition is to go into effect Thursday, a Shawnee County District Court judge will issue a ruling today on whether to block the ban in nightspots.
Following a two-hour hearing Tuesday morning, District Judge Franklin Theis said he would issue the ruling before 5 p.m. today.
The statewide smoking ban was signed into law March 12 after the Legislature passed it. Exemptions apply to some class A and B clubs; private clubs, which are outdoor facilities; and state-owned casinos.
The legal flap started June 8 when the Downtown Bar and Grill in Tonganoxie filed a lawsuit seeking a court order to permanently block the state statute from becoming law. Ten days later, the Bingo Palace, HEAT, Shooters and the Bingo Royale LLC, all in Wichita, filed a motion to intervene in the case.
About 40 spectators, most of them opposed to the smoking ban, filled seats in the small courtroom, and the rest sat on chairs and a bench in the doorway to the courthouse hallway.
Mary Conrad, owner of Mary’s Jack of Clubs, a Hutchinson drinking establishment that is open to the general public, said she was “positive” she would lose about 90 percent of her customers if the smoking ban took effect Thursday.
Customers would leave her business to go to private clubs, she said. State authorities told Conrad she couldn’t switch her club over to a class A or B club, she said.
Connie Anderson, owner of Whispers Club in Hutchinson, which is exempted from the smoking ban, said customers of nightspots impacted by the law wouldn’t simply step outside to smoke, then re-enter.
“People playing pool, people playing cards, they don’t want to go outside,” Anderson said.
Assistant attorney general Tim Reimann had argued customers wouldn’t abandon a business because they couldn’t smoke inside.
“It’s sad that places have to fight to stay open,” Anderson said.
All nightspots in Kansas should have the option to be exempt from the smoking ban, Anderson said. While she is exempt for the time being, Anderson fears she could lose that exemption due to future legislation. Anderson wore a pink shirt inscribed with “I’m feeling a hissy coming on.”
Earlier, Michael Merriam, an attorney representing the Tonganoxie bar, and Tuck Duncan, an attorney representing the Wichita businesses, urged the judge to block the smoking ban and conduct a hearing on whether to permanently block it.
Merriam wants the judge to rule the smoking ban violates the equal protection clause and to issue an order prohibiting enforcement of the new law or the judge could cut out the Jan. 1, 2009, date, making all class A and B clubs exempt from the ban. Merriam says the statewide smoking ban creates two classes of class A and B clubs, which would be identical in all ways but whether they were licensed as of Jan. 1, 2009, or after that date.
Rules governing establishments where you can smoke or can’t smoke are arbitrary, Merriam said.
“Brunettes can smoke, and blondes and redheads cannot,” Merriam said. These classifications have nothing to do with smoking. They aren’t rationally related to smoking, he said.
“Smoking is legal,” Duncan said.
“No one is putting a shotgun to someone’s head and saying you must go in and breathe that (smoky) air,” Duncan said.
Reimann urged the judge to deny the injunction that would block the smoking ban.
He said no court or jurisdiction in the United States has overturned a smoking ban.
Merriam retorted no courts have ruled on smoking in businesses with statutory classifications of A and B clubs.
By Steve Fry
Cjonline, June 29, 2010

Big Tobacco won't have to pay $280 billion

Richmond, Va. – The U.S. Supreme Court yesterday put an end to Washington’s bid to fine Big Tobacco more than a quarter of a big tobacco industrytrillion dollars for violating federal racketeering law.
But the high court also rejected cigarette-makers’ request to review a lower court’s ruling that the companies had violated federal anti-gang laws over several decades by denying the health risks of smoking, marketing to young people and making defective products.
The ruling yesterday means a lower court can order Big Tobacco to take steps – such as not labeling cigarettes as light or low tar – already required by last year’s law that gives the U.S. Food and Drug Administration regulatory authority over tobacco products.
Brushing aside appeals from the Justice Department and the tobacco industry, the court left both Big Tobacco and public-health advocates saying they had won some key points and lost some in the decade-old legal battle.
Washington lost its argument that the tobacco companies should pay $280 billion in penalties for violating racketeering law — basically, their profits since the 1970s.
Tobacco companies, including Henrico County-based Altria Group and its Philip Morris USA cigarette unit, lost their argument that a law meant to crack down on mobsters was applied wrongly to their actions over the decades.
“The takeaway point is that there will be no monetary judgment. A possible disgorgement has now been completely put to bed,” said Murray Garnick, Altria Client Services senior vice president and associate general counsel.
Tobacco-control advocates said the key point was that U.S. District Court Judge Gladys Kessler’s 2006 racketeering finding stands.
“It is now established, and will not be overturned, that the major tobacco companies have been adjudicated to be racketeers,” said Edward L. Sweda, a tobacco-control activist and senior attorney for the Tobacco Control Resource Center at Northeastern University.
The Campaign for Tobacco Free Kids said it was disappointed that the Supreme Court won’t consider whether to reinstate the $280 billion in penalties, along with demands that tobacco companies pay for programs to teach people about the risks of tobacco and to help them quit smoking.
But, it added, “Today’s decision upholds the trial court’s historic verdict that the cigarette manufacturers are racketeers and have engaged in a decades-long conspiracy to deceive the American public and target children with their deadly and addictive products.”
On Wall Street, shares of Altria rose 3 percent to close at $20.34, while Reynolds American ended 4 percent higher at $53.45 and Lorillard Inc. gained 2.5 percent to $73.54.
“While the 2006 ruling stands, the government will not be able to seek any monetary damages from the cigarette makers. This is favorable news,” said Craig Hutson, senior analyst at Gimme Credit, an independent corporate bond research firm.
The Supreme Court did not explain why it decided against considering appeals on the lawsuit.
“My best guess is the majority of the [Supreme] Court was relatively satisfied with what the D.C. Circuit Court found,” said Carl Tobias, a law professor at the University of Richmond.
The Department of Justice wanted the high court to overturn a lower-court ruling that the section of the racketeering act it used to prosecute the tobacco companies did not provide for the surrender of profits from past actions.
That particular section, which governs the issue of court orders for future behavior, was what allowed the government to prosecute its case before a single judge, instead of before a jury.
Tobacco companies argued that it was wrong to apply racketeering law to a group of companies that compete with one another, and that many of the actions called racketeering were expressions of opinion about what was for many years a matter of heated public debate — the degree of harm from smoking and second-hand smoke.
Garnick said he believes Kessler’s racketeering finding is unlikely to affect individuals’ lawsuits against tobacco companies.
He said juries and judges in several states had rejected many of the arguments the Justice Department made in its case.
The case now returns to the U.S. District Court in Washington, which is considering how to mesh its ordered remedies with last year’s FDA tobacco law.
Also on the table may be its requirements about signs in stores, which some retailers feel unfairly punish them for the actions of the tobacco companies.
TIMES-DISPATCH, June 29, 2010

Junk food and obesity: Taking a cue from tobacco control

What to do about the obesity epidemic? Here’s a thought: Substitute “tobacco” for “junk food.” That provides a pretty clear road junk foodmap about what government authorities should be doing to safeguard public health.
Unfortunately, officials are instead just reheating the same old leftovers.
Dietary guidelines issued recently by the U.S. Department of Agriculture basically say Americans need to ease up on the salt, sugar and saturated fats, and instead eat more fruits and veggies.
This is the same advice given by the department three decades ago. The difference is that the obesity rate for adults was 15% in 1980. Now it is almost twice that number, according to the Centers for Disease Control and Prevention.
In fact, more than two-thirds of adults over 20 are either overweight or obese, the CDC says. About a third of all American kids fall into that category.
“It’s not that we’re morons and have no idea what’s good for us,” said Harold Goldstein, executive director of the California Center for Public Health Advocacy, a nonprofit organization. “It’s the world around us. We’re influenced to eat by our environment.”
In other words, we might know in our heads that a Twinkie or a chocolate shake is a heart attack waiting to happen. But our gut just can’t resist the siren call of all that tasty sugar or fat. And so we eat.
And eat.
Food and beverage companies have long argued that if their products are used in moderation, they don’t pose a danger to public health. They also say it’s unfair to blame them for causing the obesity epidemic.
“If we really want to solve this national public health challenge, we must focus on educating Americans through comprehensive approaches that include nutrition education based in fact and focusing on total diet and exercise,” Susan Neely, head of the American Beverage Assn., said in a statement.
Personal responsibility is certainly a factor — no one forces us to stuff our faces. But Goldstein and other health advocates say consumers are brazenly manipulated by an industry that spends billions of dollars annually getting us to consume what it knows is bad for us.
“Up to now, it’s been a complete free-for-all, with the food industry convincing us to eat more and more of their high-fat, high-salt, high-sugar products,” Goldstein said. “It’s time that this was addressed through public policy.”
And tobacco regulation shows the way.
The rate of adults who smoke peaked at 45% in 1954, according to Gallup. It remained around 40% through the early 1970s and then started dropping as awareness about the dangers of nicotine grew, and as state and federal officials enacted anti-smoking programs.
Today, the adult smoking rate is about 20%. The same percentage applies to older teens, while about 6% of younger teens are smokers, according to the CDC.
The answer seems obvious: If we want to protect ourselves from a deadly epidemic of heart disease, diabetes and other ailments, just as we’ve taken steps to protect ourselves from an epidemic of lung cancer, we need to act.
And that means strict — some might say draconian — measures to reduce consumption of what’s bad for us, and aggressive campaigns to get us to eat and behave in a healthier fashion.
“It doesn’t seem at all draconian to me,” said Toni Yancey, a professor of health sciences at the UCLA School of Public Health. “We need to change social norms to make certain foods less appealing, just as we made it less appealing to smoke.”
We’re already removing sugary sodas and junk food from schools, and we’re doing it to help kids be healthier. Surely the same rationale applies to the rest of society.
I’m not saying we close down all McDonald’s and Burger King outlets. I’m saying we significantly limit advertising and sponsorship by companies selling, as Goldstein put it, high-fat, high-salt, high-sugar products.
This has worked for tobacco. It’s worked (on a largely volunteer basis) for alcohol. It can work for junk food.
Yancey said a good place to start would be government buildings — eliminate all bad-for-you foods and beverages. Instead, make healthful alternatives available. Gradually, if the political will can be found, expand the junk food ban to all workplaces, just as smoking bans spread from the public to the private sector.
Meanwhile, we need to step up wellness efforts to get people to make healthier choices and exercise more. These programs should be funded by levies on the foods that contribute most to obesity, and the obvious place to start is soda.
The beverage industry fiercely opposes such ideas. The chief financial officer of Coca-Cola Co., Gary Fayard, said at an industry conference this month that soda makers need to band together to fight any new taxes on their products.
Researchers at Harvard University say soft drinks are a “major driver” of obesity in the United States, and that raising the price of a can of soda by about a third could cut consumption by as much as 26%.
Tax money could also be put to better use.
“Because we subsidize corn, it ends up as high-fructose corn syrup,” Yancey said. “Why not subsidize healthy foods instead?”
I asked her what she thinks the obesity rate will be 30 years from now.
“I think it will be even higher,” Yancey replied. “Adults will be fatter.”
But if we act now, she said, future generations of kids won’t be exposed to all the cues and temptations that contribute to runaway waistlines.
“Hopefully they’ll be less fat,” Yancey said. “That’s where we’ll turn the tide.”
By David Lazarus
Latimes, June 29, 2010

US Stocks Edge Higher, Led By Telecom, Tobacco Companies

NEW YORK -U.S. stocks edged up Monday, boosted by telecommunications stocks and tobacco companies after the Supreme Court declined to review a landmark tobacco-industry ruling.
The Dow Jones Industrial Average gained 14 points, or 0.1%, to 10157. The Nasdaq Composite rose 0.3% to 2229.
The Standard & Poor’s 500-stock index rose 0.3% to 1080, with tobacco companies leading the consumer staples sector higher. Reynolds American gained 4.2%, Altria Group rose 3.2% and Lorillard gained 2.7% after the high court refused to revisit a case that found the tobacco industry violated federal racketeering laws by engaging in a decades-long scheme to deceive the public about the dangers of smoking.
The court rejected an appeal by the government, which sought to revive a rejected attempt to get tobacco companies to forfeit up to $280 billion in profits and pay $10 billion for smoking-cessation programs. The tobacco companies had also filed an appeal.
Telecommunications stocks also gained. In a boost for smartphone providers, President Barack Obama on Monday signed a memorandum to nearly double the amount of federal and commercial spectrum available for smartphones and wireless Internet devices.
In Europe, most equity markets posted slight gains after the Group of 20 world leaders pledged over the weekend to halve their budget deficits by 2013. The Stoxx Europe 600 index up 1.2% recently. Boosting sentiment, Germany’s parliamentary finance committee on Monday watered down the bill banning “naked” short-selling of all stocks and euro currency derivatives not intended for hedging against currency risks.
The dollar strengthened against both the yen and the euro, which was recently trading around $1.2289. The U.S. Dollar Index, which tracks the U.S. currency against a basket of six others, rose 0.4%. Demand for Treasurys climbed, with the 10-year note up to push yield down to 3.04%. Crude-oil prices declined, slipping below $78 a barrel, while gold futures edged down.
In other economic data, the Commerce Department said consumer spending, a key growth engine for the U.S. economy, was up 0.2% last month after a flat reading in April, in line with the expectations of economists surveyed by Dow Jones Newswires. Also matching expectations, incomes rose 0.4% in May, helped by slow improvements in the jobs market, following a 0.5% increase in April.
But investors worried that the private sector was not boosting income as much as the government.
“Income is rising, but where is it rising? It’s primarily in the public and not the private sector,” said Barry James, president and chief executive of James Investment Research. “Inside the numbers is not particularly encouraging to me,” though he did note the national savings rate’s rise from to 4% last month from 3.8% in April was a positive sign.
American depositary shares of oil giant BP PLC rose 2.6% as fears subsided that a tropical storm would disrupt the cleanup operation. However, BP said the costs of cleaning up the oil spill in the Gulf of Mexico have soared to $2.65 billion, an increase of $300 million from its estimate last Friday.
Noble Corp. jumped 4.4% after agreeing to acquire privately held drilling company FDR Holdings for $2.16 billion as the energy company also announced the signing of new contracts with Royal Dutch Shell PLC.
By Kristina Peterson, Dow Jones Newswires
JUNE 28, 2010

Bulgaria has the shortest smoking ban in the world

smoking ban
Bulgarian government calls off ban on smoking in public places just 3 days after adopting it.
Bulgaria has been known as one of the best tourist destinations thanks to pleasant prices, beautiful sights and no restrictions. Nevertheless, this situation was about to change, as the ruling party endorsed a legislation banning smoking in public areas, and making vacations not so happy for smoking tourists. Yet, it was only a beginning of the curios story that shocked anti-smoking groups around the world.
Three days after the legislation, banning smoking in all public places across the nation, was approved by the previous session of parliament, it was officially abolished on June 4.
The parliament decided to amend the ban, introducing several easings of the restrictions revealed in the State Gazette, the official paper of the government.
The amended regulations will enter into effect within 90 days after being published in the official state newspaper, since they also have to be approved by Bulgarian Council of Ministers, a panel, which shall determine the restrictions on smoking in public places.
In accordance with the latest State Health Act ratified by the recently-elected Bulgarian Parliament, smoking will be allowed in certain sections of restaurants and other eating and drinking venues, bus stations and outdoor public areas.
Moreover, the owners of establishments covering an area of 50 square meters and less will have to make a decision whether to become entirely smoke-free or permit lighting up. In conformity with the legislation the personnel is permitted to puff in specially designated smoking rooms.
The latest anti-smoking policy is nothing new and shocking for local smokers and guest of the country, as it has no major difference to the previous legislation which was in place until the three-day-long smoking ban came into force. The country’s ruling party Citizens for European Development of Bulgaria (GERB) voted for amending the measure, shortly after the elections had been carried out.
The primary reason for calling off the stricter smoking ban was the concerns of the members ruling party that the ban would damage the economy and particularly the tourist sector, which has already been hurt significantly by the economic downturn. The lawmakers were impacted by the association of hoteliers and restaurateurs who claimed that a stricter ban would aggravate the difficult economic situation.
Similar legislation was adopted 5 years ago, in 2005, however, it was generally not observed.
On June 13th, Bulgarian government announced it would examine other measures intended for cutting smoking rates across the nation, with 40% of adult male population being regular smokers. Dimitar Ivanov, head Parliamentary public health committee, stated they would limit tobacco advertisements and draw a list of areas where such adverts would be prohibited.
At this moment, adverts of tobacco products are banned on TV and radio, and the introduction of further restrictions is an attempt to offset the comprehensive smoking ban which was called off, but local anti-smoking groups claim they would do their best to return the legislation.

Verdict: Tobacco Companies Conspired To Deceive American Public and Addict Children

The Supreme Court announced on Monday that it would not take up either government or industry appeals of a landmark racketeering verdict against cigarette companies for what a lower court judge had termed a half-century of lying over the health effects of smoking.
The court’s action surprised analysts on both sides of the issue and pushed tobacco stocks sharply higher.
“What a relief,” Credit Suisse titled a note to investors.
The decision to deny a writ of certiorari, issued without comment, meant the Supreme Court would not accept an appeal by tobacco companies to overturn the 2006 civil racketeering judgment on free speech grounds, nor a counterappeal by the Obama administration asking for the trial judge to be able to force companies to return up to $280 billion in profits.
Stocks of each of the three major tobacco companies rose more than 3 percent immediately on the news on Monday morning.
Thilo Wrede, industry analyst for Credit Suisse, said in an interview, “If the decision would have been the other way, you would have seen a headline saying a $280 billion case is open again. The stocks would have seen a comparable downward move — if not more.”
Edward L. Sweda, a senior lawyer with the Tobacco Products Liability Project, an antismoking group, at the Northeastern University School of Law in Boston, described the decision as mixed.
“Obviously we’re disappointed, because we would have liked to force the companies to disgorge their ill-gotten gains,” he said. “But we’re delighted with upholding the judge’s basic finding that the major tobacco companies are in fact adjudicated racketeers. Now that is established as historical fact.”
The industry was seeking the Supreme Court’s review largely on constitutional grounds, particularly First Amendment issues, in making its views known during the public health debate about smoking.
In the 2006 case, United States District Judge Gladys Kessler concluded in a ruling of more than 1,500 pages that for more than 50 years, cigarette companies had “lied, misrepresented and deceived the American public, including smokers and the young people they avidly sought as ‘replacement’ smokers, about the devastating health effects of smoking and environmental tobacco smoke.”
The case returns to Judge Kessler for action on other remedies, like requiring the companies to do corrective advertising.
“It is now critical that the trial court move forward with strongly enforcing the remedies that it did order,” Matthew L. Myers, president of the Campaign for Tobacco-Free Kids, said in a statement. “These include requiring the tobacco companies to make corrective statements about the health risks of smoking and secondhand smoke, and their deceptive practices through newspaper and television advertising, on their Web sites and on cigarette packaging.”
Murray Garnick, a senior vice president and counsel with Altria, owner of Philip Morris USA, said in a statement, “Although we are disappointed that the Supreme Court did not grant our petitions challenging the basis for the lawsuit, we are pleased that the Supreme Court has confirmed once again that disgorgement is not an available remedy.” The two other major tobacco companies, R. J. Reynolds Tobacco and Lorillard, had also appealed.
Altria’s shares closed up $0.64, or 3.3 percent, to $20.34, and Lorillard’s rose $1.77, or 2.5 percent, to $73.54. Shares in Reynolds American, the parent of R. J. Reynolds, rose $2.08, or 4.1 percent, to $53.45.
David J. Adelman, tobacco analyst for Morgan Stanley, had expected the court to accept the case, but not to force disgorgement because that could have ruined the companies. “The ultimate prospect of a large-scale disgorgement award has been eliminated,” Mr. Adelman wrote on Monday.
Elena Kagan, as solicitor general, had signed the Obama administration petition to the Supreme Court over the disgorgement issue, and she would have had to sit out the case if it had been accepted and she was confirmed as the Supreme Court nominee by the Senate. That would have meant five of the eight remaining justices would have had to agree on disgorgement, which court watchers found unlikely.
Some aspects of Judge Kessler’s ruling, including a ban on the tobacco terms “light” and “low tar,” were also imposed through legislation enacted last year to place tobacco products for the first time under the control of the Food and Drug Administration.
Nytimes: June 28, 2010

E-cigarettes need FDA regulation, limits on sales

Chicago — Testing and safety information on electronic cigarettes is limited, the American Medical Association said, and the devices

Jonathan Klein
"There is an emerging social justice framework requiring us to protect others from secondhand smoke," says Jonathan Klein, MD, MPH, from the American Academy of Pediatrics.

should be restricted.
The AMA House of Delegates adopted policy at the organization’s Annual Meeting in June recommending that e-cigarettes be classified as drug delivery devices that are subject to regulation by the Food and Drug Administration. In addition, state legislatures should prohibit the sale of e-cigarettes and all other nicotine devices that are not FDA-approved, and the products should be covered by smoke-free laws, the policy says.
“I want them subject to [FDA] regulations so people know exactly what they’re inhaling,” said Atlanta internist Sandra Fryhofer, MD, a member of the AMA Council on Science and Public Health.
The FDA said it detected diethylene glycol, a chemical used in antifreeze that is toxic to humans, during examination of a small sample of cartridges from two leading e-cigarette brands. In several other samples, the agency identified carcinogens in the cartridges, including nitrosamines, which can be found in tobacco smoke.
FDA spokeswoman Siobhan DeLancey said the agency welcomes the AMA’s support. The FDA also wants the products regulated as drug delivery devices. She said the agency is in litigation with two e-cigarette firms over the regulatory status of the products. The companies did not return requests for comment as of this article’s deadline.
Also during the Annual Meeting, delegates debated whether individuals should be banned from smoking tobacco products in multiunit buildings because of the possible adverse health impact on other people who live there.
Jonathan Klein, MD, MPH, associate executive director of the American Academy of Pediatrics and an alternate delegate for the academy, from Elk Grove Village, Ill., noted that multiunit housing often has shared ventilation systems, meaning that smoke can filter into residences where children and nonsmoking adults live.
Tobacco smoke also can move through cracks in walls and floors, through elevator shafts, and along plumbing and electrical lines, according to an article in the June 17 New England Journal of Medicine that advocates a ban on smoking in public housing.
“I’m against smoking and secondhand smoke, and I don’t think people should be exposed to it in their apartments. But how do you tell someone they can’t smoke in their own house? Some individual rights are in conflict there,” said Daniel Koretz, MD, an Ontario, N.Y., internist and alternate delegate for the Medical Society of the State of New York, who spoke on his own behalf.
The Association moved in favor of the greater public health, adopting policy that recommends prohibiting smoking in multiunit housing.
“There is an emerging social justice framework requiring us to protect others from secondhand smoke,” Dr. Klein said.
Delegates also adopted policy that advocates for a tobacco-free school environment as defined by the Centers for Disease Control and Prevention. The CDC definition prohibits tobacco smoking, and use of spit or chewing tobacco, by students, faculty, staff and visitors in school buildings, on school grounds and in school buses or other vehicles that transport students. The tobacco ban also applies to off-campus, school-sponsored events.
The AMA policy recommends that the Association provide on its website resources that could help people implement tobacco-free school environments in their communities.
By Christine S. Moyer
Ama-assn, June 28, 2010.

A colorful death by tobacco

I once knew a man who would order multiple meals and a diet soda. He was morbidly obese, a man of robust appetites and grand gestures who died around his 50th birthday. But as tragic as he was, there was always something mildly hopeful — if also totally perverse — about the token nod toward “health” implied by those Tab colas. Sure, he was consuming 15,000 calories in one sitting, but his beverage choice allowed him to hold on to his last vestiges of dignity. As out of control as he was, this was somehow proof he hadn’t yet hit bottom.
A similar and more deadly dynamic has long been in play with cigarettes. Everyone knows by now that they’re killers. But for the last several decades smokers have been afforded some wiggle room in the form of low-tar or “light” cigarettes. Whether they were called “light,” “mild” or “ultra-light” or whether they were being marketed to women or simply those looking to minimize the risks of smoking, the idea was that they were safer than the old-fashioned stuff. The Marlboro Man’s cigarette might have been made of snakes and snails and puppy dog tails. But a cigarette like, say, Virginia Slims Lights was made of self-respect. Camel Lights, at least back when I was in college, were apparently made of great literature, as they were smoked by roughly 70 percent of English majors.
But Camel Lights are now Camel Blues. Under the new federal tobacco law, which went into effect Tuesday, it’s illegal for cigarette manufacturers to use words like “light” and “mild” to suggest that some cigarettes are less harmful than others.
As a result, we have lately seen a rainbow of new marketing techniques, a color-coding system wherein blue, silver and gold connote light and ultra light, and red and dark green signal regular tar levels. Along with this coding has sprung up an array of slightly altered names. Marlboro Lights are called Salem Ultra Lights are now Salem Silver Box. Pall Mall, which was introduced at the turn of the last century as a “premium” cigarette, made the choice to keep the deep hues of their traditional box designs and make their ultra lights a bright orange.
Of course, critics are already fighting the tobacco industry on the color-coding strategy, insisting that certain pigments are universally associated with certain concepts — red signals caution, blue signals some measure of peace and tranquility — and that cigarette companies are skirting the rules by substituting words for colors. Meanwhile, the FDA has begun an investigation into whether cigarette manufacturers are within their rights to market their products via this system.
One needn’t watch “Mad Men” to know all that goes into hiding or avoiding or, as today’s ad executives might call it, “reframing” the perils of smoking. But one also needn’t be a tobacco lobbyist to see that as long as cigarettes are legal, companies should be allowed to provide some indication as to how one type of product differs from another. After all, no one is saying any of them are safe. But let’s say it was legal to pay money to breathe out of exhaust pipes. Wouldn’t it only be fair to let consumers know they were puckering up to a Prius rather than a bus?
The argument can be made that there’s ultimately no difference. A poison is a poison is a poison. The man I knew who washed down his 15,000 calories with a Tab died prematurely from heart disease despite the perceived benefits of that “one calorie, beautiful” soft drink. Still, his gluttony had a particularly American bent to it in that he was still calling the shots of his own demise. He may have been hopeless in the face of food, but when it came to his beverage, he retained some modicum of control.
But maybe he genuinely preferred the taste of Tab. Imagine that! And maybe some smokers buy light cigarettes not because they think they’ll live longer but because they’re addicted and they’d rather spend the time they have left breathing out of a Prius than a bus. “Salem Silver Box” may have a nice ring to it, but addiction is colorblind.
By Meghan Daum