Tobacco Companies Not Liable For Failure To Warn Non-Smokers Of Health Risks Of Environmental Tobacco Smoke

Tobacco companies won a significant victory last Friday against claims by non-smokers that the companies should have warned them of the health risks of environmental tobacco smoke. The Appellate Division, Fourth Department held any such claims that tobacco companies were negligent in failing to warn nonsmokers of the health risks of environmental tobacco smoke (ETS) after the year 1969 were preempted by the Federal Cigarette Labeling and Advertising Act (15 USC § 1331 et seq.) – Tormey v American Tobacco Co., 2008 NY Slip Op 00770.

The Federal Cigarette Labeling and Advertising Act requires cigarette manufacturers to place on their packages one of four Surgeon General Warnings, none of which relate to the health effects to non-smokers of environmental tobacco smoke (see, 15 USC § 1333). In addition, the Act goes on to provide:

No requirement or prohibition based on smoking and health shall be imposed under State law with respect to the advertising or promotion of any cigarettes the packages of which are labeled in conformity with the provisions of this chapter (15 USC § 1334 [b]).

Thus, as long as cigarette packing contains one of the four specified labels, nothing under State law can require additional warnings. The Court found that a failure to warn of the risks of environmental tobacco smoke was necessarily “based on smoking and health” and was therefore is preempted by the Act. In addition, the Court found that requiring tobacco companies to provide warnings to nonsmokers would necessarily involve “advertising or promotion” of cigarettes, the regulation of which the Court found was also prohibited by the Act (15 USC § 1334 [b]).

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