Tobacco’s Trials and Tribulations

It’s been a busy week for tobacco on the East Coast, with major developments on tobacco regulations, rulings and ruminations in the states of Maine, New York and Massachusetts.

Here’s the skinny in those states:


The U.S. Supreme Court his week decided 5-4 to let Maine’s “light cigarette” smokers sue tobacco companies for fraudulent claims, which is potentially a setback for the tobacco industry.

The lawsuit, Altria Group vs. Good, was initially brought by a group of Maine smokers under the Maine Unfair Trade Practices Act (MUTPA). The smokers allege that Philip Morris USA and parent company Altria Group violated MUTPA by conveying advertising messages that fraudulently depicted their “light” cigarettes as having less tar and nicotine than regular brands.

“By covering filter ventilation holes with their lips or fingers, taking larger or more frequent puffs, and holding the smoke in their lungs for a longer period of time, smokers of ‘light’ cigarettes unknowingly inhale as much tar and nicotine as do smokers of regular cigarettes,” the smokers allege.

Tobacco health liability issues fall under the jurisdiction of the federal government, but the Supreme Court justices who ruled in favor of the smokers’ position this week said this issue was more related to false advertising – an area that states could in fact weight in on.

The tobacco industry hasn’t failed to noticed the High Court’s decision, but Altria Client Services Senior Vice President and Associate General Council Murray Garnick said it’s important to remember that the Court made no finding of liability. “We continue to view these cases as manageable, and the company will assert many of the strong defenses used successfully in the past to defend against this very type of case,” Garnick said. The Court, too, said plaintiffs must still “prove that [the companies’] use of ‘lights’ and ‘lowered tar’ descriptors in fact violated the state deceptive practices statute.”

Boston, Mass.

In what it called an effort to reduce exposure to the tobacco’s harmful effects, the Boston Public Health Commission board approved banning the sale of tobacco products at health and educational institutions, including pharmacies, drug stores, colleges and university campuses. The ban is
effective in 60 days.

The board also voted to expand workplace smoking restrictions to include adjacent areas such as patios and loading docks, and to prohibit smoking in hotels, inns and bed and breakfasts in Boston. Those changes go into effect immediately.

“Tobacco exposure continues to be a significant factor that contributes to preventable sickness and 
death,” said Dr. Barbara Ferrer, executive director of the Boston Public Health Commission. “The 
board’s actions will help reduce young people’s exposure to tobacco products, and ensure that they are not exposed to products that make them sick when they go to places like pharmacies to get well.”

Under the regulations, no new smoking bars, such as hookah bars that cater to young people, will be allowed to open.

Smoking establishments currently permitted to operate can remain open for 10 years.

The board also voted to make it illegal for stores to sell blunt wraps, a tobacco leaf often marketed to youths and sometimes used as drug paraphernalia. It also imposes steeper fines on establishments that violate the city’s new smoking regulations. Fines, including for businesses or colleges that
defy the ban will range from $200 to $1,000.

New York State

The Associated Press reported that the Seneca Indian nation is fuming over New York Gov. David Paterson’s approval of a law this week that aims to collect taxes on cigarettes sold at Indian-owned stores.

The law, signed on Monday, would go into effect in 60 days.

The AP Reported that Seneca Indian President Barry Snyder accused Gov. David Paterson of knowingly signing a flawed bill to avoid an embarrassing override by state lawmakers if he had vetoed the measure instead.

Tribal leaders are weighing options that include legal action and a media campaign to protest, the AP reported.

In letters to Paterson and President Bush, Snyder said the law tramples on rights guaranteed the tribe under the 1794 Canandaigua Treaty, including the right to "free use and enjoyment" of its land.

Snyder declined to detail the actions tribal leaders might take, but he ruled out a repeat of the tire-burning protests that shut down a 30-mile stretch of the New York State Thruway in 1997 during a previous attempt by the state to collect taxes from wholesalers who supply Indian retailers, the AP reported.

The new law signed by Paterson prohibits manufacturers from selling tobacco products without a state tax stamp to any wholesaler who doesn’t certify the cigarettes.

The bill, the AP reported, would likely raise the cost to Indian retailers and force them to charge prices more in line with the pricier products that non-Indian businesses charge.

While Indian leaders warned of devastating job losses for both Indian and non-Indian employees, some in the Indian community said similar attempts to tax tobacco products never panned out.

"None of the state’s other efforts to infringe on sovereignty have worked and there is no reason to believe this will work either," Oneida Indian spokesman Mark Emery told the AP.


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