Put This In Your Pipe and Smoke It…Fifteen Years Later: Legislation Banning Sale and Marketing of Tobacco Products To Teenagers To Go Into Effect

by kris bishop on April 8, 2010


According to a recent New York Times Article, fifteen years after the Food and Drug Administration first proposed banning the sale and marketing of tobacco products to teenagers, government officials announced last month that they would finally put the rule into effect. The rule was hugely controversial when first proposed in 1995 and was never adopted by the agency because of a Supreme Court ruling that legislation was needed to empower the F.D.A. to regulate tobacco products. That legislation was passed and signed by President Obama last June, and the rule will go into effect June 22, 2010.

In Suing the Tobacco and Lead Pigment Industries, available April 7, legal scholar Donald G. Gifford recounts the transformation of tort litigation in response to the challenge posed by victims of 21st-century public health crises who seek compensation from the product manufacturers. Class action litigation promised a strategy for documenting collective harm, but an increasingly conservative judicial and political climate limited this strategy. In 1995, Mississippi attorney general Mike Moore initiated a parens patriae action on behalf of the state against cigarette manufacturers. Forty-five other states soon filed public product liability actions, seeking both compensation for the funds spent on public health crises and the regulation of harmful products, but it has taken this long for the laws to be enforced.

Gifford finds that courts, through their refusal to expand traditional tort claims, have resisted litigation as a solution to product-caused public health problems. Even if the government were to prevail, the remedy in such litigation is unlikely to be effective. Gifford warns, furthermore, that by shifting the powers to regulate products and to remediate public health problems from the legislature to the state attorney general, parens patriae litigation raises concerns about the appropriate allocation of powers among the branches of government.



“Professor Gifford provides a comprehensive analysis of the aggregative strategies utilized in the tobacco and lead paint litigation to offer a thoughtful and broad-ranging critique of the wisdom of relying on the judiciary for promotion of public health goals.”
—Robert L. Rabin, A. Calder Mackay Professor of Law, Stanford Law School

“The topic, how tort law evolved over time into a system that allowed, for a moment at least, a parens patriae form of massive litigation against corporations, is exceedingly interesting and important. Gifford’s treatment of this topic is highly informative, engaging, insightful, very current, and wise.”
—David Owen, Carolina Distinguished Professor of Law, and Director of Tort Law Studies, University of South Carolina

“The book is clearly organized and well written. It makes an excellent contribution to the existing academic literature on the doctrinal, policy, and institutional implications of mass tort litigation.”
—Timothy D. Lytton, Angela and Albert Farone Distinguished Professor of Law, Albany Law School

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