TOBACCO CONTROL LAWS

Philip Morris v. Harshbarger

Several tobacco-product manufacturers challenged the constitutionality of a Massachusetts statute that required annual disclosure of ingredients lists and nicotine yields for all cigarettes, snuff, and chewing tobacco sold within the state to the state public health department.  These disclosures subsequently may be released by the department to the public to mitigate risks to public health.  The manufacturers argued that the statute was preempted by federal laws regulating the labeling and advertising of tobacco products, which included anonymous federal ingredient reporting requirements. The Court held that the state statute was not expressly or impliedly preempted because, among other things:  (1) it did not regulate the advertising or promotional activities of tobacco companies by requiring them to provide information directly to the public; (2) it did not frustrate either the federal labeling requirements or the national uniformity of advertising regulations; and (3) the federal regulations did not demonstrate an intent to protect tobacco ingredients from disclosure throughout the nation or to inhibit states from collecting information about tobacco additives.

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Philip Morris, Inc., et al. v. Harshbarger, et al., 122 F.3d 58, United States Court of Appeals, First Circuit (1997).

  • United States
  • Aug 18, 1997
  • United States Court of Appeals, First Circuit
View Case History

Parties

Plaintiff

  • Brown & Williamson Tobacco Corporation
  • Conwood Company, L.P.
  • Lorillard Tobacco Company
  • National Tobacco Company, L.P.
  • Philip Morris Incorporated
  • R.J. Reynolds Tobacco Company
  • Swisher International, Inc.
  • The Pinkerton Tobacco Company
  • United States Tobacco Company

Defendant

  • David H. Mulligan, Massachusetts Commissioner of Public Health
  • L. Scott Harshbarger, Attorney General of the Commonwealth of Massachusetts

Legislation Cited

Comprehensive Smoking Education Act of 1984

Massachusetts Disclosure Act, Massachusetts General Laws Chapter 94, Section 307B

Related Documents

None

Type of Litigation

Challenge to Government Policies Relating to Tobacco Control/Public Health
Tobacco companies or front groups may challenge any legislative or regulatory measure that affects their business interests. Unlike public interest litigation, these cases seek to weaken health measures. These cases frequently involve the industry proceeding against the government. For example, a group of restaurant owners challenging a smoke free law as unconstitutional.

Tobacco Control Topics

Contents and Disclosures Measures
Measures for testing, measuring, regulating, or disclosing the contents and emissions of tobacco products. (See FCTC Arts. 9 and 10)
Packaging and Labeling Measures
Measures to regulate the marketing on tobacco packages. This includes both bans on false, misleading, deceptive packaging, as well as required health warnings on packaging. (See FCTC Art. 11)
Advertising, Promotion and Sponsorship
Measures restricting any form of direct or indirect tobacco advertising, promotion and sponsorship. (See FCTC Art. 13)
Sales to or by Minors
Measures restricting tobacco sales to or by minors, as well as other retail restrictions relating to point-of-sale, candy and toys resembling tobacco products, vending machines, or free distribution. (See FCTC Art. 16)

Substantive Issues

Right to Equal Protection
A violation of the right to equal protection under the law, or another form of discrimination. The industry may claim that regulations discriminate against tobacco companies or tobacco products. Smokers may claim that addiction is a health condition, so regulations discriminate against them based on their health condition. Facilities subject to smoke free laws may claim that smoke free (SF) exceptions (e.g., hotel rooms, mental hospitals, etc.) unfairly discriminate against SF businesses because the law should apply to all locations equally.
Right to Procedural Due Process
A violation of the right to procedural fairness. For example, a party may claim that a government agency did not consult with public or stakeholders when issuing regulations.
Right to Property
A violation of property rights, sometimes in the form of an expropriation or a taking by the government. The tobacco industry may argue that regulations amount to a taking of property rights because they prevent the use of intellectual property such as trademarks.
Preemption
The subject matter of the case should be dealt with at a state level or national level.

Type of Tobacco Product

None

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