Legal UpdateContents

Features

Legal Consortium Releases New Resources on FDA Regulation of Tobacco

Tobacco in the Courts

Oregon Stops Sale of E-Cigarettes

Employee Fired for Off-Site Smoking Loses Case

Las Vegas Dealer Sues Casino over Secondhand Smoke

Profiles in Public Health Law

Cliff Douglas: Tobacco Control Lawyer

FDA Announces New Center for Tobacco Products

The Global Perspective

São Paulo Smoke-free Law Takes Effect

Taiwan’s Tobacco Control Movement Hits Stride

Departments

Ask A Lawyer

Resource Roundup

Upcoming Events

Summer 2009Tobacco Control Legal Consortium | www.tclconline.org

Legal Consortium Releases New Resources on FDA Regulation of Tobacco

The Tobacco Control Legal Consortium has released two new series of fact sheets to address questions you may have about the landmark Family Smoking Prevention and Tobacco Control Act, which President Obama signed into law June 22, 2009. This historic law gives the FDA authority to regulate the manufacturing, marketing and sale of tobacco products, while granting states and local jurisdictions important new authority to restrict cigarette advertising and promotion.

The complexity of the new legislation has given rise to many questions about what the federal law covers and how the law is likely to affect local and state policies. The Consortium’s two latest publications, available on our website at www.tobaccolawcenter.org/fda-fact-sheets.html, address several common questions raised about the new legislation:

Federal Regulation of Tobacco Products: A Summary, PDF, 575 Kb. A series of fact sheets on key provisions of the new legislation.

Federal Regulation of Tobacco Products: Impact on State and Local Authority, PDF, 593 Kb. A series of fact sheets that help clarify areas of confusion about the new law and describe tobacco control measures state and local governments can take now that the FDA will regulate tobacco products and tobacco product marketing.

In the coming months, the Consortium will develop additional materials on legal issues raised by the new legislation. Our goal is to help state and local policymakers and health advocates understand the scope of the law so they can take advantage of the new opportunities the law creates.

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Employee Fired for Off-Site Smoking Loses Case On July 23, a federal judge dismissed the suit of a former employee of Scotts Lawn Care who was fired in 2006 for smoking outside the workplace and then sued under privacy and federal employee benefit (ERISA) laws. Massachusetts resident Scott Rodrigues had only been working for two weeks when a drug test found nicotine in his urine, a violation of company policy forbidding employees to smoke on or off the job. U.S. District Court Judge George O’Toole Jr. held that Rodrigues did not have a protected privacy interest since he had never attempted to keep his smoking a secret. The judge also rejected the ERISA claim, stating that Rodrigues was not yet a bona fide employee, since his employment had been contingent on his passing the urinalysis. An attorney for Rodrigues said he plans to appeal.

Currently, twenty-nine states and the District of Columbia have laws that prohibit employers from discriminating against employees for smoking off the job. See the American Lung Association’s compilation of state “Smoker Protection” laws.

» Read Rodrigues v. EG Systems d/b/a/ Scotts Lawn Services. PDF, 38 Kb

Las Vegas Dealer Sues Casino over Secondhand Smoke

In July, a veteran Las Vegas blackjack dealer filed a federal class-action lawsuit against Harrah’s Entertainment Inc. and its Caesar’s Palace casino claiming that Caesar’s fails to protect its workers from secondhand smoke. Tomo Stephens worked twenty years as a dealer at Caesar’s until she quit in June after precancerous cells were found in her stomach and her doctor advised her that exposure to secondhand smoke would aggravate her condition.

The complaint, filed in the U.S. District Court for the District of Nevada, does not seek damages for personal injury, but asks the court to order Harrah’s Entertainment to take steps to protect its employees from secondhand smoke. The suit alleges that unlike other Nevada casinos, Caesar’s has failed to reduce smoking in its establishment, and that it encourages patrons to smoke by providing them free cigarettes and by having employees walk the gaming floors, selling tobacco products. The proposed class includes all past, current and future nonsmoking Caesar’s Palace workers “exposed to unsafe levels of secondhand smoke”—a class estimated at more than 1,000 members.

Oregon Stops Sale of E-CigarettesIn July, Oregon became the first state to prohibit the sale of electronic cigarettes in its jurisdiction. E-cigarettes are battery-operated nicotine delivery devices that consist of a heating element and a replaceable cartridge that contains various chemicals, including concentrations of liquid nicotine that smokers inhale. The Oregon Department of Justice sued to block sales of e-cigarettes by two national truck-stop chains until the U.S. Food and Drug Administration (FDA) approves e-cigarettes or until a court rules the FDA has no authority to regulate them. Even if the FDA has no regulatory authority over these smokeless nicotine-delivery devices, settlements reached by the Oregon Department of Justice and the retailers prohibit the sale of e-cigarettes in Oregon unless the manufacturers submit competent and reliable scientific evidence to support the products’ safety claims.

In related news, on July 22, the FDA issued a notice warning the public of health concerns regarding e-cigarettes. The U.S. Customs Service detained several shipments of e-cigarettes at the border and the FDA is analyzing

the ingredients in samples of these products. The FDA notice announced that a laboratory analysis of a small sample of two leading brands of e-cigarettes detected levels of known carcinogens and toxic chemicals to which users could potentially be exposed. E-cigarettes, which are readily available online and in some shopping malls, have not been approved by the FDA. The FDA’s jurisdiction over certain e-cigarettes has been challenged in a case pending in federal district court.

» Read the plaintiff’s complaint in Smoking Everywhere, Inc. and Sottera, Inc. v. U.S. Food and Drug Administration. PDF, 808 Kb

» Read the FDA’s brief in Smoking Everywhere, Inc. and Sottera, Inc. v. U.S. Food and Drug Administration. PDF, 82 Kb

» Read more about the FDA and e-cigarettes

Tobacco in the Courts

This new Legal Update feature showcases individuals with distinguished careers and records of accomplishments in public health law. Today, we profile tobacco control attorney Cliff Douglas, Director of the University of Michigan Tobacco Research Network and lecturer in tobacco control policy and law at the University of Michigan School of Public Health. Cliff is also a Tobacco Control Legal Consortium legal consultant, whose regulatory expertise and legal analysis have been invaluable to the Consortium over the years.

An indefatigable legal researcher and writer, Cliff has worked in tobacco control since 1988, generating many investigative reports in the national broadcast and print media, including the landmark ABC News exposé in 1994 on the tobacco industry’s manipulation of nicotine that led to historic congressional hearings and prompted the FDA’s original effort to regulate tobacco. The book Civil Warriors: The Legal Siege on the Tobacco Industry by Dan Zegart chronicles Cliff’s career, including the recruitment of tobacco industry whistleblowers to testify in support of health policy initiatives and

in legal actions against cigarette companies. Cliff has worked with Congress, the FDA, and leading public health organizations to advance tobacco control legislation and to investigate the tobacco industry. His legal analysis, on behalf of U.S. Senator Richard Durbin, helped persuade the U.S. Department of Justice to prosecute the tobacco industry under the federal civil racketeering laws. One of the highlights of Cliff’s career was the opportunity to witness the recent Rose Garden signing of legislation granting the FDA regulatory authority over tobacco.

Profiles in Public Health Law

Attorney Cliff Douglas shaking hands with President Barak Obama at the signing ceremony of the Family Smoking Prevention and Tobacco Control Act on June 22, 2009. Photo courtesy of the White House.

Profiles in Public Health LawCliff Douglas: Tobacco Control Lawyer

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Ask A Lawyer

Q “Are public housing authorities (PHAs) permitted to adopt smoke-free policies covering all indoor areas of their residential buildings, including common areas and individual living units? What about outdoor grounds of PHA residential buildings?”

A Yes, public housing authorities are permitted to adopt smoke-free policies for all indoor areas of their residential buildings, and they may also adopt smoke-free policies covering any and all outdoor areas on their properties. On July 17, 2009, the federal Department of Housing and Urban Development (HUD), which provides substantial funding to PHAs and requires PHAs to comply with HUD laws, issued HUD Notice PIH-2009-21 (HA), “Non-Smoking Policies in Public Housing” (PDF, 22 Kb). In that Notice, HUD stated it “strongly encourages Public Housing Authorities (PHAs) to implement non-smoking policies in some or all of their public housing units.”

Prior to issuing this Notice, HUD had stated in numerous letters from its attorneys that PHAs were free to adopt smoke-free policies because “the right to smoke or not to smoke is not a right that is protected under the Civil Rights Act of 1964 because smokers are not a protected class under federal law.” HUD has made clear that PHAs are free to adopt such smoke-free policies as they wish, so long as they comply with any applicable local and state laws. Further, the smoke-free policies may apply to both new PHA residents and current residents, including those who are smokers.

As of August 2009, approximately 120 PHAs in the U.S. have adopted smoke-free policies for some or all their buildings, covering many thousands of living units. Further, thousands more units of HUD-subsidized affordable housing are covered by smoke-free policies adopted by the private owners of these buildings. These policies are consistent with the HUD Healthy Homes Strategic Plan (PDF, 1.73 Mb) issued in 2009 and the 2009 U.S. Surgeon General’s “Call to Action to Promote Healthy Homes” (PDF, 1.89 Mb). Smoke-free policies are recognized as essential for healthy lives, and are also a guaranteed way for PHAs to save money on maintenance costs that result from cigarette smoke residue in units in which smokers have lived, and a way to avoid cigarette-caused fires.

For more information:

• HUD Notice: PIH-2009-21 (HA): www.hud.gov/offices/pih/publications/notices/09/pih2009-21.pdf PDf, 22 Kb

• 2003 Letter from Detroit HUD Office Legal Counsel: www.mismokefreeapartment.org/hudletter.pdf PDF, 132 Kb

• HUD 2008 Letter from Deputy Assistant General Counsel: www.law.umaryland.edu/programs/tobacco/documents/HUD_Letters/HUD_Baltimore_Jan08.pdf PDF, 80 Kb

• Listing of PHAs with smoke-free policies: www.tcsg.org/sfelp/SFHousingAuthorities.pdf PDF, 42 Kb

• HUD Healthy Homes Strategic Plan 2009: www.hud.gov/offices/lead/library/hhi/DraftHHStratPlan_9.10.08.pdf PDF, 1.73 Mb

• The Surgeon General's Call to Action to Promote Healthy Homes: www.surgeongeneral.gov/topics/healthyhomes/calltoactiontopromotehealthyhomes.pdf PDF, 1.89 Mb

Jim Bergman, J.D., is Director of the Smoke-free Environments Law Project of the Center for Social Gerontology, Inc., in Ann Arbor, Maryland.

If you have a question about a tobacco law-related issue that you’d like us to address in this column, or a topic you’d like us to cover in future publications, please send us an e-mail at tobaccolaw@wmitchell.edu. Thank you!

Ask A Lawyer

The Global Perspective 5

The Global Perspective

São Paulo Smoke-free Law Takes Effect A strict smoke-free law recently took effect in the Brazilian state of São Paulo, covering public places and private spaces of “collective use,” including bars, restaurants, condominium common areas, and taxis. The smoke-free law was passed earlier this year, but included an amendment delaying the effective date until 90 days after the law was published in São Paulo’s Official Gazette to give the government time to educate the public about the law and to set up smoking cessation programs. The first week the law was in effect, officials monitored 7,428 establishments and reported a 99.8 percent compliance rate. This smoke-free law is just the latest measure in Brazil’s aggressive anti-smoking campaign. One of the first countries in the world to print disturbing warning images on cigarette packs, Brazil has seen a drop in the adult smoking rate from 34 percent in 1989 to 15 percent in 2008.

» Read São Paulo’s smoke-free law.

Taiwan’s Tobacco Control Movement Hits StrideTaiwan enacted two significant tobacco control measures this year – a more comprehensive smoke-free law and a hike in its tobacco products tax. The Tobacco Hazard Prevention Act, which took effect January 11, expands smoke-free areas to all indoor public places, such as government offices, hotels, restaurants, shopping malls, Internet cafes and karaoke bars. The act also stipulates that retailers who sell cigarettes, such as convenience stores, supermarkets, restaurants, traditional grocery stores and betel nut stands, may not actively market tobacco products or display tobacco-related advertisements.

Taiwan’s second phase of tobacco control work this year was an increase in the Health and Welfare Surcharge on tobacco products, which took effect June 1. The hike increases the cost of a pack of cigarettes from NT$10 (approximately 30 cents) to NT$20 per pack (60 cents). The expected NT$10 billion in new annual surcharge revenues (approximately $304 million) will be allocated for national health insurance, social welfare services, health promotion, and the prevention of smuggled tobacco products.

On August 19, the U.S. Food and Drug Administration launched a Center for Tobacco Products to oversee the implementation of the Family Smoking Prevention and Tobacco Control Act. Under the new law, this FDA Center will set tobacco product performance standards, review premarket applications for new and modified risk tobacco products and establish and

enforce advertising and promotion restrictions. The FDA appointed Lawrence Deyton, M.D., M.S.P.H., as the Center’s first director. Dr. Deyton is an expert on veterans’ health issues, public health, tobacco use, and a clinical professor of medicine and health policy at George Washington University School of Medicine and Health Sciences.

FDA Announces New Center for Tobacco Products The success of the

FDA’s efforts to lessen

Americans’ use of

tobacco products “will

depend on our ability to

engage our public health

partners inside and

outside the government.”

– Lawrence Deyton August 19, 2009

6 Resource Roundup

NIOSH Health Hazard Evaluation StudyThe National Institute for Occupational Safety and Health (NIOSH), part of the Centers for Disease Control and Prevention, recently released a Health Hazard Evaluation report that documents the risks that casino workers in several Las Vegas casinos face on a daily basis from secondhand smoke, especially when they work on the gaming floors. The report found that casino workers on the gaming floor reported more respiratory symptoms than those who did not work on the gaming floor and had measurable levels of several toxic chemicals from cigarette smoke in their blood. NIOSH recommends making casinos 100 percent smoke-free to ensure indoor air within casinos is safe for workers to breathe.

» Read the NIOSH Health Hazard Evaluation Study. PDF, 3.93 Mb

Legal Resources on Secondhand Smoke and CondosThe Technical Assistance Legal Center (TALC) has recently released a new fact sheet on legal options for condo residents in California who suffer from secondhand smoke drifting into their units. The most effective way to eliminate secondhand smoke in a condo complex is to prohibit smoking on the premises – but not all homeowners’ associations are ready to adopt a smoke-free policy.

For residents of a complex where a smoke-free policy is not an option, TALC’s new fact sheet, “Options for Condo Owners Suffering from Drifting Secondhand Smoke,” (login required) outlines six alternative strategies. For those who are ready to pursue a smokefree policy, TALC has developed another fact sheet, “How to Make a Condo Complex Smokefree,” (login required) which outlines three ways to proceed. Both fact sheets are available at TALC’s new website at www.phlpnet.org.

The latest in the Tobacco Control Legal Consortium’s series of legal overviews on key legal issues affecting the tobacco control community is an expansion and update of one of our most popular law synopses – our 2004 Legal Authority to Regulate Smoking and Common Threats and Challenges.

In the five years since this publication was originally released, thousands of municipalities throughout the U.S. have passed state or local smoke-free laws. A small number of these laws have been legally challenged, and most of these challenges have been unsuccessful. Still, smoke-free litigation can be an exhausting, expensive and time-consuming process, and the best way to avoid it is to learn from past experience.

This publication serves as a primer on common legal threats and challenges to smoke-free regulation. It reviews state and local governmental authority for regulating smoking, briefly outlines the doctrine of preemption, and describes several constitutional legal challenges to smoke-free ordinances, including claims that have arisen with more frequency since 2004,

such as vagueness and First Amendment issues. Finally, it uses the example of private clubs to illustrate the need for care when drafting smoke-free ordinances.

Our 2009 update was prepared by the author of the original publication – Cheryl Sbarra, Director of the Tobacco Control and Chronic Disease Prevention Program for the Massachusetts Association of Health Boards. As always, we hope you find this publication a useful and informative resource in your work as a tobacco control professional.

» Legal Authority to Regulate Smoking and Common Threats and Challenges: 2009. PDF, 2.4 Mb

» Browse our sixteen other law synopses, on issues ranging from smoking regulation to tobacco sales practices.

Resource Roundup

Legal Authority to Regulate Smoking and Common Threats and Challenges: 2009

Tobacco Control Legal Consortium

William Mitchell College of Law875 Summit AvenueSt Paul, Minnesota 55105tobaccolaw@wmitchell.edutel: 651.290.7506fax: 651.290.7515

Law. Health. Justice.

www.tclconline.org

Affiliated Legal Centers

California Public Health Law & Policy Technical Assistance Legal Center

Colorado Tobacco Advocacy Resource Partnership

Maryland Legal Resource Center for Tobacco Regulation, Litigation & Advocacy

Massachusetts Public Health Advocacy Institute

Michigan Smoke-Free Environments Law Project

Minnesota Tobacco Law Center

New Jersey Tobacco Control Policy and Legal Resource Center/New Jersey GASP

Disclaimer: While we make every effort to ensure the information in this newsletter is accurate and complete, the Tobacco Control Legal Consortium is unable to guarantee this information. Material is provided for informational purposes and is not intended as legal advice. We encourage readers with questions to consult an attorney familiar with the laws of their jurisdictions.

Copyright © 2009 Tobacco Control Legal Consortium

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Upcoming Events

Clearing the Air: An Institute for Policy Advocacy September 20–21, 2009

The American Nonsmokers’ Rights Foundation’s annual event for tobacco control advocates will be held at the Stanford Sierra Conference Center, Fallen Leaf Lake, California.

» Learn more about the 2009 Clearing the Air event. PDF, 934 Kb

5th National Summit on Smokeless and Spit Tobacco September 21–23, 2009

The only national conference focusing exclusively on smokeless tobacco products will be held at the Monona Terrace, in Madison, Wisconsin. The focus of the summit is “New Products, New Challenges and a New Generation of Advocacy.”

» Visit the event website for program and registration information.

APHA 137th Annual Meeting & Exposition November 7–11, 2009

The American Public Health Association will hold its annual conference in Philadelphia, Pennsylvania. The focus of this year’s meeting is Water and Public Health. Tobacco law-related sessions will cover topics such as international tobacco control, expansive smoke-free policies, and the FDA regulation of tobacco.

» Learn more about the 2009 APHA meeting.