Big Tobacco Sues Feds over Graphic Warning on Cigarette - Research Paper Example

? Big Tobacco Sues Feds over Graphic Warning on Cigarette No: Roll No: Big Tobacco Sues Feds over Graphic Warning on Cigarette In the United States of America, family smoking prevention and tobacco control act empowers the food and drug administration to monitor the affairs of tobacco industry. To discourage adults and minors from smoking in line with the directives contained in the Family Smoking Prevention and Tobacco Control Act that has passed by the congress in the year 2009, it is incumbent upon the cigarette manufacturing company to publish and advertise new warnings that contains the images of badly affected users at the hands of tobacco on packaging (U.S. Congress, 2009). Till 1996, the FDA has no vital role to play as far as the regulation of tobacco products is concerned. It was then controlled through an array of state and congressional legislation. In most of the US States, statues deal with the issue of selling the tobacco products to minors and licensing for its distributions to retailers. In the year 1950, all states had put the ban on sale of tobacco products to minors at that time purchase age varied from state to state (U.S. Congress, 2009). The law in vogue impressed upon the large size tobacco manufacturing companies to disclose publically all the ingredients used in the cigarette manufacturing process. It should also highlight the poisonous contents used in it. The company should refrain from using the mild words just as light or ultra light to dispel the impression of its harm on human body. The bill in force makes the cigarette manufacturers accountable on wooing the adults and children to become addiction of smoking (U.S. Congress, 2009). In the eyes of critics, the promulgated act is effectuate in the sense that it can reduce the nicotine level in the cigarette to some extend rather than wipe it out completely. The affordable level of nicotine may encourage smokers to smoke more. Market restrictions definitely put the hurdles to find out the smoking alternatives to smoke cigarette. In FDA v Brown & Williamson case, the Supreme Court of United States of America held that since the congress had not delegated the authority to FDA to control the damages arising out of the use of tobacco products, therefore to fill the gap and to ensure effective control, Family Smoking Prevention and Tobacco Control Act came into being. Secondly the former American Administration over acted the delegated power of congress in this respect. As per the Senate bill, health-warning label should cover fifty percent of front and back portions of the package. The word warning thereon should be in capital letter. The number of opposition members in the Senate largely hailing from tobacco cultivating states, supported the ongoing move to discourage the smoking in spite of the facts that they have deep roots in the tobacco industry. In the larger national interest they are ready to afford the financial losses to keep away their children and adults from the bad habits of smoking (Gifford, 2010). In order to have an effective control over the damages of human health they have suggested the following measures to be implemented (U.S. Congress, 2009): 1. FDA should have tobacco control centers at its disposal to regulate the substance, marketing and sale of tobacco products. 2. Importers and tobacco companies should reveal the ingredients of their existing products and get approval from FDA. Approval for any new tobacco product should also be sought from the same authority. 3. FDA should have the authority to change the tobacco substance in any product to lessen could be damages on the body of its users. 4. It should shun the application of sugar coated definition cigarette, which is contrary to section 3(1) of the Federal Cigarette Labeling and Advertising Act (Connolly, 2004). New rules are to be introduced to prevent sales through direct channel or to conduct between retailer and consumer in order to curb the eye catching advertising campaign, which develop the taste of smoking amongst the youngster breed of smokers (Henningfield, Rose & Zeller, 2006). The warning should be in capital format and warning label to cover half of the front and rear portion of each pack. The inscribed expressions on the packet for example light, mild or low which poses less health hazard is not permissible. The provisions of the bill only address the issue of sale and distribution leaving the import of banned items for personal usage. The other day industry in question requested the competent court of law to block the printing of graphic warnings on cigarettes (U.S. Congress, 2009). The expected financial loss to the tobacco industry can easily be measured in token of having complied with the directives of U.S. Food and Drug Administration. The mentioned department intends to ensure printing of images of badly affected smokers on the packs besides strong worded warning that contains "smoking can kill you." Such type of messages on the packs not only deters the children and adults to keep themselves aloof from smoking and amounts to irreparable losses to the industry (Gifford, 2010). The five major stakeholders of tobacco industry filed petition against the respondent FDA on the grounds that the graphic images violate the free speech clause of the first amendment. The tobacco manufacturer show their willingness to accept stronger text on the sides of the packet of cigarette instead of existing warning which has the damaging effect on account of business. Despite being a key player in the industry, Philip Morris did not participated in suing the FDA although it has its own reservations on the requirement of graphic images on the packs. Others are of the opinion that if they accept the whims of FDA the interest of the company will be ruined (Gifford, 2010). To safeguard the interest of the company, the incumbent requested the court of law to allow sale of its products without the graphic warnings for an interim period i.e. till the disposal of the case by the court of competent jurisdiction on the question of its legality or illegality. Once the case is decided in favor of the FDA, the tobacco industry would have to spend a considerable amount say millions of dollars to purchase printing equipments to be used for the new labels on the packs, which would definitely be a direct bearing on their profitability (Henningfield, Rose & Zeller, 2006). The promulgated law has given the unilateral authority to FDA to keep an eye on cigarette manufacturing companies in connection with the printing of graphic images on the packs of cigarette and on the product related advertisements. This has further empowered the government to monitor the activities of a manufacturing company in light of a ruling announced by a federal court of Kentucky in the subsequent year. The new cigarette warnings came from above mentioned law that gave the FDA an authority to regulate tobacco business. Against the instructions of FDA, the defendant filed an appeal in the court of law, which is pending to decide (Gifford, 2010). The key market players of tobacco industry have taken the plea in Washington D.C. that the graphics if designed under the instructions of FDA shall create panic amongst the adults to keep a mile distance from smoking thus unconstitutional as far as fundamental rights are concerned. The tobacco companies whose cases are pleaded by a renowned lawyer Noel Francisco, is of the view that for specific images, government shall not compel the companies to place chosen and controversial adds of FDA on the front and rear sides of a pack. Contrary to that lawyer for the FDA who is in favor of following measures by tobacco companies as outlined in the said tobacco law when coming up with the graphic images even then some of the images may be disturbing as a risk point of view (Gifford, 2010). The parties in litigation with the government prayed for the cited injunctions (Henningfield, Rose & Zeller, 2006): a) Declare the Rule as unconstitutional and set aside b) Declare the Rule, which is in violation of fundamental rights as enshrined in the American Constitution and set aside c) Declare the text and graphic warnings for cigarette packs and related advertisements in effective under the Act. d) Grant plaintiffs relief or reliefs as this honorable court deems fit and appropriate inclusive cost of suits. Keeping in mind the responsibility that stems from family smoking prevention and tobacco act, FDA issued chain of instructions to the kids and adults to prevent them from smoking in view the health hazard involved in it. This has issued with the intention to decrease the lust of smokers and its easy access to children under the age of 18 and adults. The new rules include: i) making it illegal for cigarettes smokers ii) availability of smokeless tobacco to anyone under the age of 18 years iii) confine sale of cigarette packs less than 20 cigarettes iv) do not allow cigarettes or smokeless tobacco to be sold in a vending machine or at self-service display center v) ban on free samples of cigarettes or smokeless tobacco vi) discourage brand name that carries sponsor’s cultural, social and musical events vii) do not offer gifts in return for the purchase of cigarettes or smokeless tobacco viii) distribution of any item or items with logos or brand names should be discouraged ix) audio and visual ads should not contain musical impression except words (Gifford, 2010). The mentioned legislation has nothing to do with the byproducts of tobacco such as cigars, flavored tobacco used in pipe or the tobacco used in Hubble bubble. The promulgated laws, rules and regulations do not ensure purchase of tobacco at the age of 19 years. Hence, remains ineffective. Enforcement of mentioned rules and regulations are the ultimate responsibility of FDA through its employees (Gifford, 2010). To substantiate the government stance on initiating the graphic images that reflect the serious health injuries caused to the smokers, we cite here some of the cases wherein court of competent law awarded compensation to the individual pleaders: One such example is the case of Brown & Williamson Tobacco Corporation where an individual received more than one million dollars plus the cost of suit and the fee of counsel who pleaded the case. It was the landmark decision in the history of United States of America in which for the first time any plaintiff actually received hand some money as compensation in a core tobacco products liability case. By any standard of justice, it was a major milestone in the history of tobacco litigation (Guardino & Daynard, 2005). The other case in point is the case of Carter v Brown & Williamson Tobacco Corporation. In this case the court awarded Carter 0.750 million dollars as compensation for the damages caused to the litigant who filed an appeal in the court of competent jurisdiction which lasted over a period of four years (Guardino & Daynard, 2005). One more citation is the case of Henley v Philip Morris. The trial court awarded the petitioner amounting to 1.5 million dollars in compensation of damages caused to him besides 50 million dollars as punitive damages. Later on, it was cut short to 25 million dollars by the trial court against an appeal of defendant. Although the trial judge later cut the punitive damages to 25 million dollars. The appeal in question raises material questions about the relevancy of the timings of the victim’s injury and claim there against in the case under discussion. California Court of Appeal in a similar case upheld the amount of more than 26 million dollars awarded to plaintiff by rejecting the stance of defendant that has taken place in their appeal. The defendant against the decision of Californian court of appeal approached to the Supreme Court of California. The matter lies before the court for decision (Guardino & Daynard, 2005). Last but not least here is another citation of law case between Boeken and Philip Morris wherein the trial court of Los Angeles awarded Boeken the plaintiff who was suffering from lung cancer, an amount of more than 5 million dollars in claim of damages due to use of the product of said tobacco company besides 3 billion hefty punitive damages. The punitive damages later on reduced to 100 million dollars by the court of appeal on an appeal filed by the defendant. Despite the willingness of the plaintiff to accept, the reduced amount of punitive damages could not be materialized in view of the intention of the defendant to file an appeal against this judgment in the court of competent jurisdiction (Fields, 2010). References Connolly, G. N. (2004). Sweet and spicy flavours: new brands for minorities and Youth. Tobacco Control 13:211–212 http://www.ncbi.nlm.nih.gov/pmc/articles/PMC1747891/pdf/v013p00211.pdf Fields, Aramide. (2010). California Supreme Court Rules Spouse’s Wrongful Death Case Barred by Prior Loss of Consortium Suit Seeking Identical Recovery. Retrieved on September 13, 2011 from http://www.mofo.com/files/Uploads/Images/100519CaSup.pdf Guardino, Sara D. & Daynard, Richard A. (2005). Punishing Tobacco Industry Misconduct: The Case for Exceeding a Single Digit Ratio Between Punitive and Compensatory Damages. Northeastern University School of Law: Bepress Legal Series. Henningfield, J. E., Rose, C. A. & Zeller, M. (2006). Tobacco industry litigation position on addiction: continued dependence on past views. Tobacco Control 15 (4): iv 27–36. Gifford, Donald G. (2010). Suing the Tobacco and Lead Pigment Industries: Government Litigation as Public Health Prescription. University of Michigan Press: Ann Arbor. U.S. Congress. (2009). Family Smoking Prevention and Tobacco Control Act. Public Law 111-31; One Hundred Eleventh Congress of the United States of America. Congress U.S. City: U.S. Government Printing Office. Retrieved on September 11, 2011 from http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=111_cong_public_laws&docid=f:publ031.111.pdf Read More