Legal UpdateWorkplace Smoking: Options for Employees and Legal Rights for Employers

Given the incontrovertible scientific evidence that workers exposed to secondhand smoke face increased risk of heart disease and lung cancer, many employers are adopting much stronger smoking-related policies, ranging from entirely smoke-free business campuses to hiring policies that limit employment exclusively to nonsmokers. And yet much of the U.S. workforce continues to be exposed to smoke in the workplace.

The Tobacco Control Legal Consortium’s latest synopsis, entitled Workplace Smoking: Options for Employees and Legal Risks for Employers, explores smoke-free workplace policies that help fulfill an employer’s legal obligation to provide a safe workplace and protect employee health, while reducing the employer’s legal risk. The synopsis was written by experienced tobacco control attorneys Leslie Zellers and Samantha Graff of Public Health Law & Policy at the Public Health Institute – the Consortium’s California affiliate. This report describes four policy approaches that employees might pursue to turn workplaces into smoke-free environments: passing state or local laws; enacting state occupational health and safety agency regulations; changing collective bargaining agreements; and promoting adoption of voluntary rules by the employer. It also explains legal actions that employees could take against their employers for exposure to secondhand smoke at work, including workers’ compensation claims, disability discrimination claims, and claims that the employer failed to provide a safe workplace.

» Read Workplace Smoking: Options for Employees and Legal Rights for Employers. PDF, 1.6 Mb

Tobacco Control Legal Consortium | www.tclconline.org

Contents

Features

Workplace Smoking: Options for Employees and Legal Rights for Employers

FDA Legislation Passes House

Minnesota Tobacco Settlement Anniversary Reception

Tobacco in the Courts:

The Saga of Philip Morris v. Mayola Williams Rolls On

Exceptions to Omaha’s Smoke-free Law Ruled Unconstitutional

“Keystone State” Goes Smoke-free

Consortium Files Amicus Brief in Supreme Court “Light” Cigarette Case

Global Perspective:

British Court Says Smoking Not a Legally Protected Human Right

Ontario Outlaws Smoking in Cars with Children Inside

Departments

Ask A Lawyer

Resource Roundup

Upcoming Events

Summer 2008

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By a margin of 326 to 102, the U.S. House of Representatives on July 30 passed H.R. 1108, the Family Smoking Prevention and Control Act—historic legislation that would empower and direct the Food and Drug Administration to regulate tobacco products. The vote caps many years of debate on various FDA regulatory proposals—more than 20 bills have been introduced since 1956—and turns attention to the Senate, where the likelihood of a vote this year remains uncertain.

The massive bill, co-sponsored by 233 members of the House and 57 members of the Senate, is supported by nearly all the nation’s leading health organizations, but is opposed by others in the public health community, as well as critics within the FDA and the White House.

The tobacco industry is itself divided, with Philip Morris strongly supporting the bill, while other manufacturers oppose it. Meanwhile, Harvard medical historian Allan Brandt, writing in the New England Journal of Medicine, calls it a combination of “pitfalls and possibilities.” Given all this, it may not be surprising that the bill’s sponsors range from tobacco control stalwarts like Representative Henry Waxman and Senator Edward Kennedy, to diehard defenders of the tobacco industry, like Richmond, Virginia Congressman Eric Cantor, who says the bill will mean “a stable and prosperous future for Philip Morris.”

» Read the FDA bill (H.R. 1108). PDF, 1.35 Mb

» Read summary fact sheets prepared for the Tobacco Control Network by the Legal Consortium.

FDA Legislation Passes House

Minnesota Tobacco Settlement Anniversary ReceptionOn May 8, 2008, the Consortium’s Minnesota affiliate and coordinating office, the Tobacco Law Center at William Mitchell College of Law in Saint Paul, joined Blue Cross and Blue Shield of Minnesota in hosting a reception to commemorate the tenth anniversary of the historic Minnesota tobacco settlement. The settlement, which uncovered the millions of secret tobacco industry documents that have helped fuel the growth of the global tobacco control movement, was called “one of the most significant public health achievements of the second half of the 20th century” by former U.S. Surgeon General C. Everett Koop. The reception followed Blue Cross’s Prevention Minnesota Conference, a cutting-edge conference on effective strategies for advancing tobacco control, healthy eating and increased physical activity. Blue Cross and Blue Shield of Minnesota, the only private organization ever to partner with a government to sue the tobacco industry, has honored the purposes of the litigation by committing the bulk of its settlement recovery to a 25-year effort to improve the health of all Minnesotans by strengthening public policies and changing social norms to address chronic diseases.

At the May reception, Doug Blanke, director of the Tobacco Law Center and executive director of the Tobacco Control Legal Consortium, introduced key

participants in the Minnesota case, including the presiding judge, retired Ramsey County District Court Judge Kenneth Fitzpatrick; former Minnesota Attorney General Hubert “Skip” Humphrey; lead trial counsel Mike Ciresi, of Robins, Kaplan, Miller & Ciresi; and former Blue Cross CEO Andy Czajkowski. The participants shared memories of the trial, spoke on the settlement’s legacy, and received plaques memorializing their roles in the historic case.

About the Minnesota Tobacco Settlement

Ten years ago, Minnesota reached an historic settlement with the tobacco industry. The landmark agreement—the fourth largest legal settlement in history—opened the tobacco industry’s secret document vaults, exposing fifty years of deception. It created the first ban on cigarette marketing aimed at children. It brought down tobacco billboards and imposed the first bans on tobacco-branded merchandise and secret payments for using cigarettes in movies. It funded support for Minnesota smokers who want to quit. And it required the tobacco industry to pay the state of Minnesota $6.1 billion.

Hubert “Skip” Humphrey III, Michael Ciresi, Judge Kenneth Fitzpatrick, Doug Blanke, Andrew Czajkowski, and Roberta Walburn » View photos of the reception on Flickr

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On June 9, the U.S. Supreme Court agreed to hear for a third time the long-running efforts of Philip Morris USA to overturn a $79.5 million punitive damages award won by the widow of a longtime Oregon smoker who died of lung cancer. In 1999, a jury awarded Mayola Williams compensatory damages of $821,000 (which Oregon courts later reduced to $521,000) and $79.5 million in punitive damages. Since then, the widow has been caught in what can only be described as a nine-year game of ping-pong between the Supreme Court and the courts of Oregon.

In 2003, the Supreme Court overturned the jury’s verdict, saying that under a new judge-made rule, punitive damages should usually be limited to no more than nine times the amount of the compensatory damages. The case went back to the Oregon Supreme Court, which again reviewed the evidence in detail and, in a unanimous and strongly-worded opinion, again declined to reduce the punitive damages, holding that Philip Morris’ actions were far beyond ordinary misconduct, and in fact were “extraordinarily reprehensible” behavior comparable to manslaughter under Oregon law.

The case was again appealed, and last year the U.S. Supreme Court again struck down the punitive damages award, ruling that the jury may have improperly punished Philip Morris for harm it inflicted on smokers who were not parties to the litigation. The Court ordered the Oregon Supreme Court to reconsider the award again and to make sure that, in calculating the punitive damages, jurors

had not considered harm to any smokers other than Ms. Williams.

When the case got back to Oregon, the Oregon Supreme Court once more reinstated the $79.5 million award, ruling that there were independent state law reasons for reaffirming the award, because Philip Morris had failed to raise timely objections to the trial judge’s ruling on its suggested jury instructions. Philip Morris was promptly back before the Supreme Court, claiming that the state court had not raised this point in the previous proceedings and was attempting to evade the Supreme Court’s instructions.

In deciding to hear the case a third time, the Supreme Court did not agree to examine the amount of the verdict—although, if history is any indication, that issue may take center stage in some future round of this litigation nightmare. Instead, the Supreme Court will decide whether the Oregon court may determine its own procedural rules, or whether the state court’s inherent authority over its procedures must yield to the Supreme Court’s seeming determination to see the verdict against Philip Morris reduced.

» Read the latest Oregon Supreme Court decision.

» For more information about the Williams case, see Legal Update Feb/March 2006 PDF, 159 Kb; Legal Update Oct 2006 PDF, 659 Kb; and Legal Update March 2007 PDF, 728 Kb.

The Saga of Philip Morris v. Williams Rolls On

Exceptions to Omaha’s Smoke-free Law Ruled Unconstitutional

On June 16, 2008, a Nebraska district court judge struck exemptions in Omaha’s smoke-free ordinance, after the Nebraska Supreme Court’s unanimous ruling the previous month that temporary exemptions in the ordinance were unconstitutional. The Omaha ordinance prohibits smoking in places of employment and public gathering places, but had exempted keno parlors, stand-alone bars, horseracing simulcasting locations, and tobacco retailers until May 2011. The court ruled that these exemptions constituted “special legislation” under Nebraska law, which it found arbitrary and unjustifiable given the purpose of the law and the city’s failure to submit evidence supporting the exemptions. Omaha’s smoke-free ordinance will now take effect. Nebraska’s new statewide smoke-free law will go into effect June 1, 2009.

» Read the Nebraska Supreme Court decision, PDF, 106 Kb

Tobacco in the Courts

The case went back to the Oregon Supreme Court, which again reviewed the evidence in detail and, in a unanimous and strongly-worded opinion, again declined to reduce the punitive damages, holding that Philip Morris’ actions were far beyond ordinary misconduct, and in fact were “extraordinarily reprehensible” behavior comparable to manslaughter under Oregon law.

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On June 18, the Tobacco Control Legal Consortium submitted a “friend of the court” legal brief in the U.S. Supreme Court in a critically important “light” cigarette case, Altria v. Good. The outcome of this case may determine whether consumers can continue to sue the tobacco industry for any form of fraudulent misrepresentation and deceptive marketing, or whether federal law preempts state lawsuits and allows manufacturers to escape legal accountability.

The Consortium’s brief, in which we were joined by AARP and Public Justice, argued that, based on the Supreme Court’s seminal 1992 decision in Cipollone v. Liggett Group, there is no merit to Altria’s radical claim that the Federal Cigarette Labeling and Advertising Act shields cigarette companies from fraud claims under state law. We point out that holding otherwise would “effectively insulate cigarette manufacturers from rules governing fraud, no matter how egregious the manufacturers’ false statements or fraudulent concealment.” Indeed, were Altria’s position correct, the states of the nation would have been unable to bring the largest lawsuits of all time, the states’ tobacco litigation of the 1990s.

Our brief also debunks the tobacco industry’s theory that the Federal Trade Commission (FTC) has a “policy” authorizing the use of health descriptors like “light” and “low tar,” and that this federal policy preempts state lawsuits. We argue that this “implied preemption” claim

is without basis since no such FTC “policy” exists, and we point out that finding FTC preemption in this case would seriously undermine the ability of states to enforce their own consumer protection and anti-fraud statutes.

The Consortium’s brief was written by Professor David Vladeck of Georgetown University Law Center. It complements other briefs by leading medical and public health organizations, the Federal Trade Commission, and the Consortium’s Maryland affiliate, the Legal Resource Center for Tobacco Regulation, Litigation & Advocacy.

This will be the first case argued when the Supreme Court’s 2008 term begins October 6.

» Read the court ruling from Cipollone v Liggett Group.

» Read the Consortium’s Altria v. Good amicus brief. PDF, 178 Kb

» For more information about Altria v. Good, see Legal Update Jan/Feb 2008. PDF, 1 Mb

Consortium Files Amicus Brief in Supreme Court “Light” Cigarette Case

“Keystone State” Goes Smoke-free

On June 13, 2008, Pennsylvania Governor Ed Rendell signed the state’s new Clean Indoor Air Act, making Pennsylvania the thirty-third state to pass smoke-free workplace legislation. The law is not comprehensive, but covers all non-hospitality workplaces, including restaurants, office buildings, hospitals, schools and sports facilities, and will take effect September 11, 2008. Smoking will still be permitted in certain workplace and entertainment venues, including some bars, enclosed bar areas of restaurants and casino gaming floors. As part of the compromise legislation, the law preempts municipal local smoke-free laws that conflict with the state law, but Philadelphia’s 18-month-old ordinance, which covers two planned casinos, will not be affected.

» Read the new Pennsylvania law.

» Read about pending smoke-free legislation throughout the U.S.

Tobacco in the Courts

Susan R. Weisman, J.D. Tobacco Law Center

Mike Freiberg, J.D. Tobacco Law Center

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Mike Freiberg, J.D., and Susan R. Weisman, J.D., from the Tobacco Law Center answer this month’s question.

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!

“I’ve heard that a few bars have challenged a statewide smoke-free law by holding ‘theater nights’ to take advantage of ‘theatrical performance’ exemptions. On what legal grounds did the bars base these challenges?”

Smoke-free laws in eleven states and the District of Columbia contain some form of exemption for smoking in theatrical performances. Minnesota’s new smoke-free law, which took effect ten months ago, allows smoking “by actors and actresses as part of a theatrical performance.” Through the winter, a few Minnesota bars attempted to circumvent the new law by announcing “Theater Nights,” in which bar patrons claimed to be “actors,” and the ordinary activity of any bar was dubbed a “theatrical performance,” with some of the “performances” running for months without an “intermission.” In time, state and local authorities brought five enforcement actions to end the charade. Two district court decisions, one civil and one criminal, have now held that these performances were shams and that the activity is illegal.

While the Minnesota litigation turned primarily on questions of statutory interpretation, bar owners also raised arguments based on the First Amendment. In one injunctive action by the State, a bar’s attorney argued that the bar was staging “improvisational” plays similar to “famous audience participation works such as Flannigan’s Wake and Tony & Tina’s Wedding.” He cited Schacht v. United States (1970), a Supreme Court case holding that a Vietnam War protestor performing a “street skit” while wearing a military uniform did not violate a statute that prohibited civilians from wearing military uniforms. The Schacht Court held that the protest was a theatrical production, noting that “theatrical productions need not always be performed in buildings or even on a defined area and as a conventional stage.” The Minnesota court rejected this analogy, finding that the bar activity in question had no storyline, script, choreography, or staging.

In a second case, a bar’s attorney argued that his client was not guilty of a petty misdemeanor because the bar was hosting a “smoking protest play,” in which the bar patrons were “actors” discussing “human rights” and “freedom.” He claimed that smoking was an integral part of this message and therefore protected by the First Amendment, comparing the smoking to the burning of an American flag, which the U.S. Supreme Court has held to be constitutionally protected speech. Texas v. Johnson (1989). The court rejected the argument, noting that the play had no costumes or script, didn’t take place on a stage or away from the bar area, and was “indiscernible from the general activities taking place in [the bar] before the smoking ban went into affect (sic), but for the ‘Actor’ name tags.” The misdemeanor conviction has been appealed, but the dual rulings appear to have ended “theater nights” in Minnesota.

Courts in other U.S. jurisdictions have declined to invalidate smoke-free laws on First Amendment grounds. Most recently, in Curious Theater Company v. Colorado Department of Health (2008), the Colorado Court of Appeals held that smoking as part of a play is expressive conduct entitled to a certain degree of First Amendment protection. The court ruled, however, that Colorado’s smoke-free workplace law need not make an exception for smoking in theatrical performances because the law does not regulate the content of the speech, but merely focuses “on the adverse health effects of tobacco smoke.” Similarly, in Taverns for Tots v. City of Toledo, an Ohio district court concluded that “simply smoking in a bar or restaurant is not sufficiently expressive to enjoy First Amendment protection.”

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The Global Perspective

British Court Says Smoking Not a Legally Protected Human Right

A British high court recently ruled that preventing patients in a psychiatric hospital from smoking does not breach articles 8 and 14 of the European Convention on Human Rights. Three patients detained in a Rampton high security psychiatric hospital sued the hospital claiming that its smoke-free policy interfered with their right to privacy within their “own home” and thus violated their human rights. The Queen’s Bench Divisional Court dismissed these claims, finding that smoking is not a basic human right and that keeping the hospital smoke-free is in the interest of the patients and all who live and work in the facility.

» Read the British high court decision.

» Read a Legal Consortium synopsis on why smoking is not a constitutional right under U.S. law. PDF, 1.4 Mb

Ontario Outlaws Smoking in Cars with Children Inside

On June 16, Ontario became the third Canadian province to pass a bill prohibiting smoking in vehicles carrying children under the age of 16. Under the law, any driver or passenger caught smoking with a minor inside the vehicle can be fined C$250 ($247). The proposed law applies to both moving and stationary motor vehicles, regardless of whether a window, sunroof, rooftop, door, or other vehicle feature is open. The legislature passed a third reading, and will become law as soon as it receives royal assent.

Nova Scotia and British Columbia have already enacted smoke-free car laws, and the governments of Prince Edward Island and New Brunswick are considering similar legislation. Meanwhile, four U.S. states have passed smoke-free vehicle ordinances – Arkansas, California, Louisiana, and Maine, along with Keyport, New Jersey and Rockland County, New York.

» Read the status of U.S. smoke-free car bills in other jurisdictions.

» Read the Canadian Cancer Society’s global listing of jurisdictions that have addressed this issue. PDF, 19 Kb

Resource Roundup

State Smoking Restrictions for Private-Sector Worksites, Restaurants and Bars U.S. 2004 and 2007

The Centers for Disease Control and Prevention recently released a report summarizing the changes in state smoking restrictions for private-sector worksites, restaurants, and bars that occurred from 2004 to 2007. The report indicates a substantial increase in the number and restrictiveness of state laws regulating smoking in these three settings. The U.S. Department of Health & Human Services has called for all 50 states and the District of Columbia to have smoke-free indoor public places and worksites by the year 2010. MMWR 2008;57(20);549-552.

» Read the CDC report.

“Verdict Is In” Publication Translated into Portuguese

In 2006, the Tobacco Control Legal Consortium prepared “The Verdict Is In: Findings from United States v. Philip Morris,” a user-friendly distillation of highlights of the historic 1,700-page federal court ruling that the major U.S. cigarette manufacturers are “racketeers.” In 2006, we distributed a thousand copies of this publication, which consists of seven handy booklets documenting the areas in which the tobacco industry has defrauded the world, including marketing to youth, secondhand smoke, addiction, and so on. Last year, thousands of additional copies were distributed at the National Conference on Tobacco or Health. Since then, we continue to receive requests for this publication from around the world. Recently, one of the leading tobacco control organizations in Brazil, the Aliança de Controle do Tabagismo (ACTbr), translated the publication into Portuguese, printed 3,000 copies, and is distributing it in Brazil in both print and electronic form.

» Read O Veredicto Final (Portuguese) on the ACTbr website.

» Read The Verdict is In (English) on the Legal Consortium website.

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Tobacco Control Legal Consortium

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Upcoming Events

ASTHO –NACCHO Joint Conference Sept. 9-12

The Association of State and Territorial Health Officials (ASTHO) and the National Association of County and City Health Officials (NACCHO) will present a joint annual conference on Sept. 9–12, 2008 in Sacramento, California at the Sacramento Convention Center. The conference theme is “Becoming the Healthiest Nation in a Healthier World.” In conjunction with ASTHO and NACCHO, the Tobacco Control Legal Consortium will present a 4-hour crash course in public health law for nonlawyers.

» Register for the ASTHO-NACCHO conference.

Conference on Public Health, Law & Obesity Sept. 19-21

Two Consortium affiliates, the Public Health Advocacy Institute (Massachusetts) and Public Health Law & Policy (California) are sponsoring the fifth conference on public health, law and obesity Sept. 19–21, 2008, at Northeastern University School of Law in Boston, Massachusetts. The conference will focus on current legal approaches to the obesity epidemic.

» Register for the PHAI/PHLP conference.

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

Ohio Tobacco Public Policy Center

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 encour-age readers with questions to consult an attorney familiar with the laws of their jurisdictions.

Copyright © 2008 Tobacco Control Legal Consortium