Amicus Curiae Brief — Cipollone v. Liggett Group, Inc.
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Supreme Court, us. |
FILED
4)
MAY 23 1991
oie |
OFFICE Of THE CLERK
IN THE SUPREME COURT OF THE U
OCTOBER TERM, 1990
THOMAS CIPOLLONE, individually and as Executor
of the Estate of Rose D. Cipollone, Petitioner
Vv.
LIGGETT GROUP, INC., a Delaware Corporation;
PHILIP MORRIS INCORPORATED, a Virginia
Corporation; and LOEW’S THEATRES, INC.,
a New York Corporation, Respondents
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
BRIEF AMICUS CURIAE OF THE
SIX FORMER SURGEONS GENERAL OF THE
UNITED STATES, THE AMERICAN COUNCIL FOR
SCIENCE AND HEALTH, AND THE
TOBACCO PRODUCTS LIABILITY PROJECT
Richard A. Daynard S. Stephen Rosenfeld
Northeastern University Stern, Shapiro, Rosenfeld
School of Law & Weissberg
400 Huntington Avenue 80 Boylston Street
Boston, MA 02115 Suite 910
(617) 437-2026 Boston, MA 02116
Counsel of Record (617) 542-0663
Counsel for Amici
| TABLE OF CONTENTS
| INTEREST OF THE AMICI ................ 2
STATEMENT OF THECASE............... 4
SUMMARY OF ARGUMENT ............... 5
te 7
THE COMMON LAW DUTY TO PROVIDE AN
ADEQUATE WARNING REQUIRES ONLY
THAT CIGARETTE MANUFACTURERS FIND
WAYS TO COMMUNICATE THE TRUTH
ABOUT THEIR PRODUCT, AND WAYS ARE
AVAILABLE FOR COMMUNICATING THE
TRUTH THAT DO NOT CONFLICT WITH
PRE EE a Wi we See hee ee tires. 7
A. This Is Not A Case About Conflicting
Label Requirements, Because The Common
Law Of Products Liability Imposes On
Manufacturers A Duty To Warn, Not A
Duty To Label, And That Duty To Warn
Can Be Met In Various Ways Without
Undermining The Federal Labeling
DE cdiuvt oe O68 66 4 ae ep ese ec 7
B. By Mischaracterizing Their Duty Under
The Common Law, The Cigarette
Manufacturers Seek To Shield Themselves
From The Dynamic And Continuing
Obligation Borne By Every Other
Manufacturer In America In Products
(et eee 2 ee on ee ee Oe we ee a ee! ee ee ee eee eee Pe ee eee ee i
Liability Cases, To Keep Abreast Of
Evolving Knowledge About Their Products
And Share New Knowledge About Risks
Le ee 16
C. It Is True That The Duty Under State
Law To Provide Accurate Information To
Consumers Would Jeopardize The Efforts
Of Cigarette Manufacturers To Negate The
Message Of The Mandated Warning
Labels, But Nothing In The Federal Act Or
The Doctrine Of Preemption Supports The
Attempts Of The Cigarette Manufacturers
To Escape Accountability For Such Conduct
In Product Liability Cases. ............ 18
D. If The Cigarette Manufacturers Are
Held To The Same Legal Standards As The
Manufacturers Of Other Dangerous
Products, Potentially Life-saving Information
Will Flow To Addicted Adults, As Well As
To Teenagers And Children Who Are
Contemplating Smoking, About The Specific
Ilinesses Associated With Cigarettes And
The Probability Of Illness And Death. ..... 24
CONCLUSION ..ncccccccscsesteeueuees 30
TABLE OF AUTHORITIES
Cases:
Antley v. Yamaha Motor Corp., 539 So.2d 696 (La. Ct.
TSE et ec ttc ere eeecees 17
Banzhaf v. Federal v. Communications Comm’n, 405 F.2d
re tte cee ecees 23
Barry v. Don Hall Laboratories, 56 Or. App. 518, 642
DES e ce cece eecseccess 17
Barson v. E.R. Squibb & Sons, Inc., 682 P.2d 832 (Utah
Te tcc cee cces 17
Borel v. Fibreboard Paper Products Corp., 493 F.2d 1076
EE 11
Broussard v. Continental Oil Co., 433 So. 2d 354 (La. Ct.
DPCM EGS ssoeceeececoeccececcs 12
Carolina Home Builders, Inc. v. Armstrong Furnace Co.,
aoe O.0. 346, 191 $.E.26 774 (1972)... 2. woe. 17
Cipollone v. Liggett Group, Inc. 683 F. Supp. 1487
TTL. coc ceecce coco cees 19
Cipollone v. Liggett Group, Inc., 789 F.2d 181 (3d Cir.
1986) cert. denied 479 U.S. 1043 (1987) ......... 9
Cobb v. Syntex Laboratories, 444 So.2d 203, 205 (La. Ct.
Te tk cect ce ee ee cee. 13
Crocker v. Winthrop Laboratories, 514 S.W.2d 429 (Tex.
Pe eee er en) a ee 25
D’Arienzo v. Clairol, Inc., 125 N.J. Super. 224, 310 A.2d
PR 0s 4 os 6a 640 eneeebeese cnet ll
East Penn Mfg. Co. v. Pineda, 578 A.2d 1113 (D.C. Ct.
Ree, TEED oo ce cece dee eres dn besedcece's 12
Erickson v. American Honda Motor Co., 455 N.W.2d 74
(Minn. Ct. App. 1990) (rev. den 1990) .......... 12
Feldman v. Lederle Laboratories, 97 N.J. 429, 479 A.2d
See whe 4 de 0 ka Vea bb Seee Eee teas 17
Feldman v. Lederle Laboratories, 234 N.J. Super. 559.
OP Se ee ee 15
Felix v. Hoffman-LaRoche, Inc., 540 So.2d 102 (Fla.
Sl dé 6 bo oie © o's 6 td 06 6 oO eemeeeee eeeane 1]
Ferebee v. Chevron Chemical Co., 736 F.2d 1529 (D.C.
a Ss 5-6 downs) o 9 00 eh eee Gans 17
Firestone Tire & Rubber Co. v. Battle, 745 S.W.2d 909
ff FS PePrrrererey errr r rere T 12
George v. Celotex, 914 F.2d 26 (2d Cir. 1990) ..... 18
Gingold v. AUDI-NSU Auto Union, 389 Pa. Super. 328,
Fae Pi DEE ED oc ccc eetovevecereeens 16
Humes v. Clinton, 286 Kan. 590, 792 P.2d 1032 (1990) 12
iV
Incollingo v. Ewing, 444 Pa. 263, 282 A.2d 206 (1971) 18
Johnson v. Southern Pacific Co., 196 U.S. 1 (1904) . . 24
LaPlant v. E.I. DuPont De Newours and Co., 346 §.W.2d
ae ees es Gs ki dks a E440 cae bRS 17
MacDonald v. Ortho Pharmaceutical Corp., 394 Mass. 131
cert. denied 474 U.S. 920 (1985) ............. 25
Manietta v. International Harvester Co., 496 A.2d 286
OT See ee ee 17
Monsanto Co. v. Miller, 455 N.E.2d 392 (Ind. Ct. App.
ad 6 404 ove 60 0 bn beet eb a Kean 17
Rivers v. Am. Tel. & Tel. Technologies, et al, 147
Misc.2d 366, 554 N.Y.S. 2d 401 (Sup. Ct. 1990) ... 13
Silver v. New York Stock Exchange, 373 U.S. 341 (196397
Strain v. Mitchell Manufacturing Co., 534 So.2d 1385
(La. Ct. App. 1988, writ den. 1989) ........... 17
Texas & Pacific R. Co. v. Abilene Cotton Oil Co., 204
FE Ee ae eee 24
Westinghouse Elec. Corp. v. Nutt, 407 A.2d 606 (D.C.
aris cba 6'éé ae wee cae ene oes 17
Whitacre v. Halo Optical Products, Inc., 501 So.2d 994
i Ge Ss Ge bb 6b ed obese oe eens bee 17
Wooderson v. Ortho Pharmaceutical Corp., 235 Kan.
_ , _- SEPP TELE TELLAE CLT 10, 17
Wyeth Laboratories, Inc. v. Fortenberry, 530 So.2d 688
Ce oe. 1. ee ee oc bet bh ees 12
Constitution, statutes, and rules:
15 U.S.C. sec. 1331 et seq. .........4.. 4, 15, 22
Miscellaneous:
Australian Federation of Consumer Organizations Inc. v.
Tobacco Institute of Australia (New South Wales, No. G
Ch 466s 6 oG6 64 oS CO Nee ee ees's 21
Broadcasting, April 18, 1983 ................ 13
In the Matter of R.J. Reynolds Tobacco Co., Dkt. 9206, 5
CCH Trade Regulation Reporter para. 22,522 (1988)14, 21
Keeton, “Products Liability--Problems Pertaining to Proof
of Negligence,” 19 Sw. L.J. 26 (1965) .......... 10
New York Times, January 12, 1979 ............ 14
Senate Report (Commerce Committee (No. 91-566, Dec.
5, 1969 [To accompany H.R. 6543], 1970 U.S. Code
Cong. & Adm. News 2655 - 2657 ............. 22
U.S. Dep’t of Health and Human Serv., Reducing the
Health Consequences of Smoking: 25 Years of Progress.
A Report of the Surgeon General (1989) ...... 23, 26
Wrubel, “Liability for Failure to Warn or Instruct,”
vi
Pract. Law Inst. Litigation and Administrative
Practice Course Handbook Series: Litigation
(1989)
a a a aan on ae ee ne Ss aS ea ae Ss as Ss we eS eS ee
Vil
IN THE SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1990
NO. 90-1038
THOMAS CIPOLLONE, individually and as
Executor of the Estate of Rose D.
Cipollone, Petitioner
Vv.
LIGGETT GROUP, INC., a Delaware
Corporation; PHILIP MORRIS
INCORPORATED, a Virginia
Corporation; and LOEW’S THEATRES,
INC., a New York Corporation,
Respondents
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
BRIEF AMICUS CURIAE OF THE
SIX FORMER SURGEONS GENERAL OF
THE UNITED STATES,
THE AMERICAN COUNCIL FOR SCIENCE
AND HEALTH, AND THE TOBACCO PRODUCTS
LIABILITY PROJECT
———
INTEREST OF THE AMICI
| Letters from the parties granting consent for this
brief have been filed with the Clerk of this Court.
All six living former Surgeons General of the
United States join as amici in this brief. Leonard A.
Scheele, M.D., served from 1948 to 1956. Leroy E.
Burney, M.D., served from 1956 to 1961, and in 1957
became the first Surgeon General to call public attention to
the likelihood that cigarette smoking caused lung cancer.
William H. Stewart, M.D., served as Surgeon General
from 1965-1969. Jesse L. Steinfeld, M.D., served as
Surgeon General from 1969 to 1973 and participated in the
amendment process in 1969 and 1970 that strengthened the
Federal Cigarette Labeling and Advertising Act (the
Labeling Act). Julius B. Richmond, M.D., served as
Surgeon General and Assistant Secretary of Health from
1977 to 1981, and led executive branch efforts to inform
the public of the dangers of smoking, including the
publication of the comprehensive Fifteenth Anniversary
Surgeon General’s Report in 1969. C. Everett Koop,
M.D., served as Surgeon General from 1981 to 1989, and
was responsible for the Surgeon General’s Reports on the
relationships between smoking and various cancers,
cardiovascular disease, chronic obstructive lung disease,
workplace illnesses, and nicotine addiction, as well as the
comprehensive 1989 report, titled Reducing the Health
Consequences of Smoking; 25 Years of Progress.
| Each of these former Surgeons General has
dedicated his professional life to improving the public
health in the United States. Each has recognized the
enormous damage that cigarette smoking has done to the
health of millions of citizens, as the leading preventable
cause of death and disease in the United States. In the
opinion of the amici, reversal of the Court of Appeals
decision preempting the cigarette manufacturers’ common
law obligations to tell the truth about their products will
make a significant contribution to the public health.
The amicus American Council on Science and
Health (ACSH) is a public health education advocacy
group dedicated to providing Americans with sound,
scientific data to enable them to separate real from
hypothetical risks. ACSH is directed and advised by 200
American and Canadian scientists and physicians. ACSH
has, since its founding in 1978, given first priority to
clarifying the role of cigarette smoking as the leading
preventable cause of death and disease in the United
States. ACSH joins this brief because it believes that the
legal immunity conferred by the lower court has permitted
cigarette manufacturers to continue to confuse the
American public about the risks of cigarette smoking,
undermining informed choice.
The amicus Tobacco Products Liability Project was
established in 1984 by a group of doctors, attorneys, and
academics, to engage in advocacy seeking to subject the
tobacco industry to the same obligations to consumers and
the public as other American industries. The Project,
which is part of the nonprofit organization Clean Indoor
Air Educational Foundation, has submitted amicus briefs
in the First, Third, Sixth and Eleventh Circuit Courts of
Appeal on the preemption question presented here.
3
STATEMENT OF THE CASE
This is a state common law tort action brought in
federal district court pursuant to its diversity jurisdiction.
The plaintiff's claims are for personal injury and wrongful
death caused by decades of smoking cigarette products
manufactured by the respondents. Early in the litigation
the respondents raised as a defense the argument that the
plaintiff's claims were preempted by the Labeling Act, 15
U.S.C. sec. 1331 et seq. Essentially, the cigarette
manufacturers argued that claims based on their failure to
warn smokers and the public of the serious dangers of
smoking, and claims that they engaged in false and
misleading practices, could not be heard on the merits
because Congress, in passing an act to mandate warning
labels on cigarette packages, had precluded such claims.
The district court ruled against the respondents but was
reversed after the issue was certified for interlocutory
appeal to the Third Circuit Court of Appeals. A petition
for certiorari from that interlocutory decision was denied,
and the case proceeded through discovery and trial on
claims arising prior to passage of the Labeling Act.
The jury reached a verdict granting recovery on
certain claims, denying recovery on others. On appeal the
Third Circuit affirmed the sweeping reading of its
preemption decision by the district court, which had held
that it covered intentional tort claims as well as claims of
negligence.
SUMMARY OF ARGUMENT
This brief will not repeat the arguments presented
by the petitioners and the other amici regarding the
doctrine of preemption as expounded by the Supreme
Court, or the meaning of the Labeling Act as revealed by
its language, structure, and legislative history. Rather,
since it is the state common law of products liability that
will either survive or fall under the disposition of this case,
the amici believe it is essential for the Court to fix its
attention on the nature of that state law, to determine
whether in practical fact it poses a threat to either the
purpose or the operation of federal law. The respondents
have attacked the common law duty to warn, but they have
not taken care to explain it. Since the overriding goal of
the amici, as stated in the Interests section, supra, has been
to open up the channels of communication so that
consumers and would-be consumers across this country can
come to understand fully the serious dangers associated
with cigarette smoking, the amici believe it is vital that the
duty to warn be preserved in the area of cigarette products.
In the view of the amici, the cigarette manufacturers’
acceptance of their responsibility under the common law is
our best hope for ensuring that the dangers of cigarette use
are finally brought home to the American public.
The duty to warn is neither in actual conflict with
the Labeling Act, nor does it threaten to undermine its
regulatory design. The decisions of state courts make
clear that cigarette manufacturers have means available to
provide an adequate warning about the serious and often
life-threatening risks of smoking that are not in conflict
5
ewe ee -
with the Labeling Act. In fact, the respondents and other
Cigarette manufacturers have over the years utilized all the
methods recognized by the common law for
communicating information about products, but rather than
deliver warnings, they have used these methods to
challenge the significance of scientific data documenting
the risks of smoking. The same techniques would also be
available for satisfying the cigarette manufacturers’ duty to
warn.
In truth, the respondents have been counting on
preemption to shield them from the continuing and
dynamic obligation borne by every other manufacturer in
America in products liability cases, to keep abreast of
evolving knowledge about their products and share new
knowledge about risks with consumers. That shield does
not serve the goals of the Labeling Act, it mocks them.
In like manner the respondents seek to turn the
Labeling Act on its head, arguing that its reference to
cigarette “advertising or promotion" goes so far as to
protect them from accountability under the common law
duty to warn even when they use advertising and
promotion to undermine the impact of the cigarette
warning label. They argue, in essence, that the Congress
engaged in sabotage of its own legislative goal of
advancing public health by immunizing even their
intentional efforts to mislead the public about the risks of
Cigarette smoking from state suits for compensation. This
Court has given such arguments short shrift in the past; it
should do so here.
ARGUMENT
THE COMMON LAW DUTY TO
PROVIDE AN ADEQUATE WARNING
REQUIRES ONLY THAT CIGARETTE
MANUFACTURERS FIND WAYS TO
COMMUNICATE THE TRUTH ABOUT
THEIR PRODUCT, AND WAYS ARE
AVAILABLE FOR COMMUNICATING
THE TRUTH THAT DO NOT CONFLICT
WITH FEDERAL LAW.
A. This Is Not A Case About Conflicting Label
Requirements, Because The Common Law Of Products
Liability Imposes On Manufacturers A Duty To Warn, Not
A Duty To Label, And That Duty To Warn Can Be Met In
Various Ways Without Undermining The Federal Labeling
Requirements.
A fundamental principle of preemption holds that
state law which does not conflict directly and
irreconcilably with federal law should be permitted to
stand. Accordingly, preemption analysis demands that the
Court scrutinize not only the Act of Congress for which
supremacy is claimed, but the state law that is targeted for
execution.’
’'The purpose of dual interpretation of state and federal
law is to find a way, if one is legitimately available, to
avoid unnecessary state-federal friction, by permitting a
local law which does not conflict directly and
7
Moreover, the respect that our system of federalism
pays to state and local law counsels that the Court demand
more than the Third Circuit’s superficial portrayal.”
irreconcilably with federal law to stand. See, e.g.,, Silver
vy, New York Stock Exchange, 373 U.S. 341, 357 (1963)
(in determining whether federal securities regulation
preempts local regulation, “the proper approach is to
reconcile the operation of both statutory schemes with one
another rather than holding one completely ousted").
It should not escape the Court’s notice that the Third
Circuit’s holding on preemption contained no analysis of
the operation of state law whatsoever. Its entire
examination of the issue was as follows:
Having identified the purposes of the
[Labeling and Advertising] Act, we now
must evaluate the effect of the operation of
State common law claims on these purposes.
In so doing, we accept the appellants’
assertion that the duties imposed through
State common law damage actions have the
effect of requirements that are capable of
creating "an obstacle to the accomplishment
and execution of the full purposes and
objectives of Congress." As the appellants
point out, several Supreme Court opinions
reflect recognition of the regulatory effect of
State law damage claims and their potential
for frustrating congressional objectives.
8
Common law, in particular, is the bedrock of local law,
and although it is subject to preemption, the respondents
must shoulder the heavy burden of showing that the nature
and operation of the common law of products liability is
such that a head-on collision between the Labeling Act and
the common law will inevitably occur if the two systems
are permitted to coexist. The respondents have made no
such showing, nor can they, because the law of New
Jersey -- in harmony with the common law of products
liability generally -- is sufficiently broad-gauged and
flexible to permit it to fulfill its role without interfering
with the purpose or operation of the federal law in any
way.
The role of products liability law at one level is to
Applying this principle, we conclude that
claims relating to smoking and health
that result in liability for noncompliance
with warning, advertising, and promotion
obligations other than those prescribed in the
Act have the effect of tipping the Act’s
balance of purposes and therefore actually
conflict with the Act. Cipollone v. Liggett
, 789 F.2d 181, 187 (1986) cert.
denied 479 U.S. 1043 (1987) (citations and
footnote omitted).
The bold act of displacing the state’s common law a
deserved far more by way of analysis than this ipse dixit
approach.
compensate. When the salutary, interdependent relation
between manufacturer and consumer has broken down, and
injury that was avoidable has occurred because the
manufacturer has failed in its responsibility for
communicating about the dangers of its product and how
to avoid them, the common law requires compensation.
At a more fundamental level, however, it is clear that the
root of the duty to warn is not the compensation itself, but
the manufacturer’s unfairness in not sharing information,
and thereby imposing risks on the consumer of which the
consumer is unaware. The premise of this branch of the
common law is that, in the case of a prudent consumer,
adequate warnings prevent injuries, and in the case of
consumers who do not take adequate warnings to heart,
their own lack of prudence precludes a right to recover.”
Because the principle of effective information-
sharing behind the duty to warn is result-oriented, the
common law relies not on rigid formulae or abstract
doctrines; there is no preordained type of communication
that automatically passes or fails the liability test. It is not
"See, ¢.8., j
235 Kan. 387, 681 P.2d 1038 (1984) ("There is a
presumption that an adequate warning would be heeded.
This operates to the benefit of the drug manufacturer [of
oral contraceptives] where adequate warnings are in fact
given, but where warnings are inadequate, the presumption
is in essence a presumption of causation"). See also
Keeion, “Products Liability--Problems Pertaining to Proof
of Negligence,” 19 Sw. L.J. 26, 34 (1965).
10
a common law of labels, or of public service
announcements, or of warning brochures, or package
inserts, or instruction manuals. All these methodologies
have a potential role, and the manufacturer has wide
latitude in determining how to warn and thereby to avoid
liability. If the warning is accurate, clear and
unambiguous,” if it is sufficiently intense in language to
communicate the gravity of the risks involved in the use of
the product,” if it is complete and unclouded by
"W]e recognize that the function of language is not
only to express ideas accurately, but to communicate them
effectively. The touchstone must be the impression created
by the directions or warnings on the average reasonable
consumer." D’Arienzo v, Clairol, Inc,, 125 N.J. Super.
224, 310 A.2d 106 (1973); Felix v, Hoffman-LaRoche,
Inc., 540 So.2d 102 (Fla. 1989) (adequacy of warnings
regarding side effects of prescription drugs can become a
question of law and taken from the jury if the warning is
“accurate, clear, and unambiguous"). For a thorough and
up to date treatment of the duty to warn and its
ramifications, see Wrubel, “Liability for Failure to Warn
or Instruct,” Pract. Law Inst. Litigation and Administrative
Practice Course Handbook Series: Litigation (1989).
See, ¢.g., Borel v. Fibreboard Paper Products Corp.,
493 F.2d 1076, 1104 (Sth Cir. 1973) (Texas law)
(warnings failed to intimate the dangers of fatal illness
caused by asbestosis and mesothelioma. The words “may
be harmful” held to convey “no idea of the extent of the
danger”).
11
contradictory messages,® and as long as the methods
chosen are likely to find their way to those who need the
warning,” the duty to warn is satisfied.¥
“See part C, infra.
“See, ¢.g., Broussard v. Continental Oil Co,, 433 So.
2d 354 (La. Ct. App. 1983) (single warning label referring
consumer to Owner's manual was adequate given the
number and complexities of specific warnings); Wrubel,
ODP. cit. n. 4, at 27.
"See, £..,
530 So.2d 688 (Miss. 1988) (en banc) (package insert
warning physicians of possible adverse reactions to non-
swine flu vaccine found adequate as matter of law); Humes
y. Clinton, 286 Kan. 590, 792 P.2d 1032 (1990) (warning
brochure satisfies manufacturer’s warning obligation in
case of injury caused by IUD); Erickson v. American
Honda Motor Co., 455 N.W.2d 74 (Minn. Ct. App. 1
(rev. den 1990) (video and brochure to warn ha
buyers of all terrain vehicles of the dangers; verdict for
plaintiff on other grounds); East Penn Mfg. Co. v. Pineda
578 A.2d 1113 (D.C. Ct. App. 1990) (pamphlet and
manual provide adequate warning of risks in recharging
battery); Firestone Tire & Rubber Co. v. Battle, 745
S.W.2d 909 (Tex. Ct. App. 1988) (In upholding verdict
for plaintiff, court cites manufacturer’s failure to warn in
the face of recommendation from safety expert that
pamphlet be widely disseminated in order to reduce or
eliminate “spin-break’ accidents from hidden defect in
12
The cigarette manufacturers are, in fact, well-
versed in finding diverse ways to deliver their own
peculiar health message to consumers. For example, they
provide a toll-free telephone number for journalists to call
to obtain comments from “the other side” when news
stories break about the hazards of smoking.” They offer
trained spokespersons to appear on national and local radio
and television programs to defend against reports on
smoking risks.“ They give press conferences to
coincide with the release of the Surgeon General’s Reports,
in order to rebut the health assertions contained in these
tires); Cobb v. Syntex Laboratories, 444 So.2d 203, 205
(La. Ct. App. 1983) (manufacturer not liable because
patient received manufacturer's pamphlet from physician
specifically warning of risk of stroke from birth control
pills).
The use of more than one method for warning
consumers of the risks associated with the product can
provide strong evidence of an adequate effort to warn. See,
e.g., Rivers v. Am. Tel, & Tel. Technologies, et al, 147
Misc.2d 366, 554 N.Y.S. 2d 401 (Sup. Ct. 1990)
(manufacturer's effort to warn every link in the chain of
distribution of chemical, with label on barrels, package
inserts for physicians, and instruction manuals preclude
liability on a failure to warn theory).
See, e.g., Broadcasting, April 18, 1983, at 9.
Lg.
13
reports.” They have even run full-page newspaper and
magazine advertisements dedicated entirely to disputing
public health findings.” Significantly, they apparently
have not considered these advertisements to come within
the ambit of the Labeling Act, since they have not put the
Surgeon General’s warnings on them. These same
methods would be as effective in warning about the
dangers of smoking as they have been in disputing
them.”
Thus, under these prevailing principles of the
common law, the federally mandated label may be left
completely intact. If to avoid liability the respondents
have a responsibility to communicate the knowledge they
possess of the dangers of smoking, they also have a variety
of means available to them, and the operation of tort law
in trials in state court will not interfere with the purpose or
‘See, ¢.g., New York Times, January 12, 1979, at 1,
11.
“These advertisements appear as exhibits in the
Federal Trade Commission opinion in In the Matter of
RJ. Reynolds Tobacco Co., Dkt. 9206, 5 CCH Trade
Regulation Reporter para. 22,522 at 22,197-22,215 (1988).
“Another common method for warning of health risks,
package inserts, has been employed by one cigarette
manufacturer. See package insert, appended to this brief,
which R.J. Reynolds Tobacco Co. included inside every
pack of Premier cigarettes.
14
operation of the federal act.’ The federal labeling
requirements will not be tampered with; rather, an
examination will be made whether the state of knowledge
about smoking risks obligated the respondents and other
cigarette manufacturers to use one or more of the other
available means of communication to warn the plaintiff of
dangers not covered by the label. Far from undermining
the purpose of the federal law, Congress’ primary goal of
“adequately inform{ing the public) about any adverse
health effects of cigarette smoking"! is best served by
permitting the state law to function in precisely the fashion
that it has evolved in the products liability area, making
information-sharing between manufacturer and consumer
the essential price by which freedom from this type of tort
liability is purchased.
1/Even if a direct conflict between state and federal
law were somehow to arise in the course of a trial, then
“preemption...is limited to a holding that the specific issue
decided by the jury imposing liability on [the
manufacturer] was preempted as a result of direct conflict
between our state’s decisional law and the [federal law].”
Feldman v, Lederle Laboratories, 234 N.J. Super. 559,
561 A.2d 288, 296 (1989) (in case where duty to warn
imposed obligation in conflict with explicit FDA
regulations, the duty to warn remains operative, but the
particular claim is precluded by the Supremacy Clause).
8’ 15 U.S.C. sec. 1331.
15
B. By Mischaracterizing Their Duty Under The
Common Law, The Cigarette Manufacturers Seek To
Shield Themselves From The Dynamic And Continuing
Obligation Borne By Every Other Manufacturer In
America In Products Liability Cases, To Keep Abreast Of
Evolving Knowledge About Their Products And Share
New Knowledge About Risks With Consumers.
The manufacturer’s duty to warn consumers under
State law contains a corollary, continuing duty to search
for knowledge about its products that would tend to reveal
hidden risks. In contrast, the duty to warn as the
respondents would frame it, limited to the four corners of
the federal act and its narrow labeling requirement, is
frozen in time. Regardless of how Significantly knowledge
about the dangers of cigarette smoking has advanced, the
respondents may turn a blind eye, at least until the periodic
Congressional tug of war produces a different requirement,
at which point a new frozen-in-time warning requirement
replaces the old.
If the respondents’ version of preemption succeeds,
the important incentive for manufacturer vigilance fostered
by the duty to warn will not apply. If, however, the shield
of preemption is unavailable to them, the cigarette
manufacturers will for the first time be encouraged to
recognize that they bear the same continuing responsibility
to inform the public fully about the risks of their products
as is borne by every other manufacturer in America. See,
e.g., Gi Vv - ion, 389 Pa. Super.
328, 567 A.2d 312, 329 ( 1989) (child auto restraints: "The
specter of damage actions may provide manufacturers with
16
added dynamic incentives to continue to keep abreast of all
possible injuries stemming from the use of their cocoon
as to forestall such actions through product EY :.
quoting from Wage .
41-42 (D.C. Cir. :
prawn $6 Or. App. 518, 642 P.2d 685, 689 (1982)
(vitamins: “The duty is to keep abreast of research -
knowledge...in its field and to warn of ‘all reasonable
dangers which the manufacturer knows or should _—
concerning the product in its use by the purchaser’).
1’The products that have undergone ae the
inui » " of research an
continuing duty to "keep abreast 0
knowledge are amazingly diverse. See, €.8., ef .
2d 774 (1972) (air conditioners); LaPlant v.
1 ities Sadimemanl Oe 346 S.W.2d 231 (Mo.
i -killer); Westinghouse Elec.
Ct. App. 1961) (chemical weed-ki
Corp. v. Nutt, 407 A.2d 606 (D.C. 1979)(elevators);
Sent te Ota beta tan 501 So.2d 994
. Ct. App. 1987)(safety goggles); Monsanto Co, v.
month 455, NE2¢ 392 ‘Ind. Ct. App. 1983)(silo —
material); a. . a — Co.,
.2d 286 (Me. | ump trucks); Feldman v, Lederle
apres 97 N.J. 429, 479 A.2d 374 (1984)
(tetracycline); W .
. 387, 681 P.2d 1038 (1984) (oral contraceptive),
pots vi Motor Corp., 539 So.2d 696 (La. Ct.
App. 1989) (all-terrain vehicles); Barson v, E.R. Squibb &
Sons, Inc., 682 P.2d 832 (Utah 1984) (hormone drug);
ss ~n facturi 534 So.2d 1385
17
C. It Is True That The Duty Under State Law To
Provide Accurate Information To Consumers Would
Jeopardize The Efforts Of Cigarette Manufacturers To
Negate The Message Of The Mandated Warning Labels,
But Nothing In The Federal Act Or The Doctrine Of
Preemption Supports The Attempts Of The Cigarette
Manufacturers To Escape Accountability For Such Conduct
In Product Liability Cases.
Cigarette manufacturers have used misleading
words and visual imagery in a frequently successful effort
to confuse children and teenagers who are contemplating
smoking about the reality, nature, and extent of the
dangers, as well as to provide addicted smokers with
rationalizations for not quitting. In this way the
manufacturers negate the warning label and other
information about the risks of smoking. The evidence
presented by the plaintiff on this subject was summarized
The common law obligation of the manufacturer of by the trial court below as follows:
a dangerous product is not limited to telling its customers
and potential customers the truth about the nature and
extent of the hazards of its product: it must also tell the
whole truth and nothing but the truth. RESTATEMENT
2D TORTS, §527 and §529 (the whole truth), §402B and
§557A (nothing but the truth). The obligation is violated
where the manufacturer uses studied ambiguities,
half-truths, and false impressions in an effort to maintain
sales while pretending to tell the truth. Thus,
“overpromotion" of a product may vitiate an otherwise
valid warning.’
(La. Ct. App. 1988, writ den. 1989) (collapsible school
lunch tables); and George v. Celotex, 914 F.2d 26 (2d
Cir. 1990) (asbestos).
” Action designed to stimulate the use of a potentially
dangerous product must be considered in testing the
adequacy of a warning as to when and how the product
should not be used." Incollingo v. Ewing, 444 Pa. 263,
282 A.2d 206, 220 (1971).
18
Evidence presented by the plaintiff,
particularly that contained in documents of
the defendants themselves, indicates the
development of a public relations strategy
aimed at combating the mounting adverse
scientific reports regarding the dangers of
smoking. The evidence indicates further
that the industry of which these defendants
were and are a part entered into a
sophisticated conspiracy. The conspiracy
was organized to refute, undermine, and
neutralize information coming from the
scientific and medical community and, at the
same time, to confuse and mislead the
consuming public in an effort to encourage
existing smokers to continue and new
persons to commence smoking. Cipollone
v. Liggett Group, Inc., 683 F. Supp. 1487,
19
1490 (D.N.J. 1988); see generally id, at
1490 - 1493.
concerned the respondents’ pre-1966 conduct, there is
ample evidence, both in the trial record below and in the
public record, that their efforts to undermine the
government’s public health education campaign have
continued unabated. Thus, the Tobacco Institute, the
industry’s designated public relations and lobbying
representative, continued to run advertisements such as the
one, which ran in newspapers on December 1, 1970,
headlined “After millions of dollars and over 20 years of
research: The question about smoking and health is still a
question.” (P-2920, J.A. 42). The pretextual nature of this
continuing "research" is documented in a 1974 Lorillard
memorandum: "Historically, the joint industry funded
smoking and health research programs have not been
selected against specific scientific goals, but rather for
various purposes such as public relations, political
relations, position for litigation, etc." (P-939, J.A. 60).
The techniques used by the industry to undermine public
understanding of the dangers of their products included
"creating doubt about the health charge without actually
denying it" (P-1105, J.A. 51), and “attacking researchers
themselves, where vulnerable” (P-2745, J.A. 70).
Although most of the evidence at trial perforce |
A dramatic application of the industry’s strategy is
the series of full-page advertisements which the R.J.
Reynolds Tobacco Company ran in newspapers and
20
magazines in 1984 and 1985. The first of the series
asked for “an open debate about smoking,” asserting that
"[s]tudies which conclude that smoking causes disease have
regularly ignored significant evidence to the contrary."
(P-2935; J.A. 72). Another one, entitled “Of
cigarettes and science,” asserted that the belief that
smoking causes heart disease "is an opinion. A judgment.
But not scientific fact.” Several other advertisements
contain the assertion that “there is little evidence -- and
certainly nothing which proves scientifically -- that
cigarette smoke causes disease in non-smokers. "’
See n. 12, supra.
195g,
20 This advertisement was the subject of a 1986 FTC
complaint, which resulted in a May 22, 1989 consent
judgment in which the respondent agreed, inter alia, to
refrain from "[mJisrepresenting in any manner, directly or
by implication, in any discussion of cigarette smoking and
chronic or acute health effects, the results, design, purpose
or content of any scientific test or study explicitly referred
to concerning any claimed association between cigarette
smoking and chronic or acute health..." In the Matter of
R.J. Reynolds Tobacco Co., Dkt. 9206.
Exhibits 2-D, 2-F, and 2-G, 5 CCH Trade
Regulation Reporter para. 22,522, at 22,201, 22,203, and
22,204. The Federal Court of Australia found, in an
exhaustive 210-page opinion issued on February 7, 1991,
21
The Federal Trade Commission concluded in its
1967 report to Congress pursuant to sec. 1337 of the
Labeling Act that “[t)here is virtually no evidence that the
warning statement on cigarette packages has had any
effect," and that part of the reason may be that "[cJigarette
advertising continues to promote the idea that ci
smoking is both pleasurable and harmless.” The FTC’s
1969 report concluded that “current cigarette advertising
leaves the impression that cigarette smoking is a healthy
activity and one whose risk, to the extent that it exists, can
be reduced through the presence of a filter.” See Senate
Report (Commerce Committee) No. 91-566, Dec. 5, 1969
[To accompany H.R. 6543], 1970 U.S. Code Cong. &
Adm. News 2655 - 2657 (quoting both FTC reports).
Twenty years later, nothing fundamental had
changed:
in Australian Federation of Consumer Organizations Inc,
y. Tobacco Institute of Australia (New South Wales, No.
G 253 of 1987) that the identical statement made in
Australian newspaper advertisements in 1986 was
incorrect, and that if the industry was permitted to repeat
this assertion, "Active smokers are likely to be misled or
deceived by the statement into believing that their smoking
does not prejudice the health of non-smokers.
Non-smokers are likely to be deceived or misled by the
statement that cigarette smoke does not affect their own
health or the health of their children. These are serious
matters." Id. at 209.
22
Despite the fact that cigarette warning labels
have been required since 1966, there are few
data about their effectiveness in meeting any
objective... [T]here is empirical evidence
that the public did not pay much attention to
the pre-1985 labels in advertisements...
These findings are consistent with analyses
of the visual imagery of tobacco advertising,
which note that the structures of the ads
draw consumers’ attention away from the
warnings contained in the ads. It has also
been argued that the sheer volume of
cigarette advertising, all applying the basic
themes of product satisfaction, positive
image associations, and risk minimization,
overwhelm the in-advertisement warnings.
U.S. Dep’t of Health and Human Serv.,
Reducing the Health Consequences of
of the Surgeon General, at 478 - 477
(1989)(references omitted).
Such conduct, if proved, violates the respondents’
duty to warn. It is not, as the respondents’ have argued,
protected by the Labeling Act. The principal purpose of
the Federal Cigarette Labeling and Advertising Act is to
increase the information available to consumers about the
true relationship between smoking and health. Banzhaf v.
Federal v, Communications Comm'n, 405 F.2d 1082
(D.C. Cir. 1968). The use by cigarette companies of
studied ambiguities, half-truths, or false impressions to
describe this relationship subverts this purpose. Even if it
23
were possible to read the words of 15 U.S.C. §1334() so
expansively as to protect the manufacturers against
common law claims for misrepresentation, fraud, and
conspiracy based on deceptive health claims, such an
extreme reading would serve only to undermine Congress’
principal purpose of advancing public health. This Court
has rejected much more solidly based statutory readings,
where the effect would be to provide “a ready means by
which...the wrongs which the statute was intended to
remedy could be successfully inflicted.” Texas & Pacific
R. Co. v, Abilene Cotton Oil Co., 204 U.S. 426 (1907);
see Johnson v. Southern Pacific Co., 196 U.S. 1, 14, 18
(1904).
It is hard to see how the methods of communication
that have been employed to undermine the impact of the
warning label mandated by the Labeling Act should be
protected, while the state’s common law that contemplates
the use of these methods to reinforce the warning label and
ensure that Congress’ message gets through should be
preempted. This is the essence of the respondents’
perverse argument, and it deserves rejection.
D. If The Cigarette Manufacturers Are Held To
The Same Legal Standards As The Manufacturers Of Other
Dangerous Products, Potentially Life-saving Information
Will Flow To Addicted Adults, As Well As To Teenagers
And Children Who Are Contemplating Smoking, About
The Specific Illnesses Associated With Cigarettes And The
Probability Of Illness And Death.
If cigarette manufacturers are not held to enjoy a
24
special federal immunity from state law torts standards,
they will have to find means to communicate, effectively
and unambiguously, to their customers and potential .
customers, the nature and extent of the hazards of using
their products. Although there may be limits to the
potential effectiveness of public education in reducing
cigarette usage, these limits are not being reached, largely
because the cigarette companies have not met their
responsibility to support and enhance this effort, but
instead have worked to undermine it.
Among the types of information to which
consumers are entitled are the specific fatal, disabling, or
addictive diseases and conditions which the products can
cause,22’ and the likelihood that a person using the
product will contract one of these afflictions. In the
case of cigarettes, the manufacturers are responsible for
2/See, e.g., MacDonald v, Ortho Pharmaceutical
Corp., 394 Mass. 131, 475 N.E.2d 65, cert. denied 474
U.S. 920 (1985)(disabling stroke), Crocker v, Winthrop
Laboratories, 514 S.W.2d 429 (Tex. 1974) (addiction to
prescription drug).
2/See MacDonald v. Ortho Pharmaceutical Corp., n.
22, supra, 475 N.E.2d at 70: “Thus, the manufacturer's
duty is to provide to the consumer written warnings
conveying reasonable notice of the nature, gravity, and
likelihood of known or knowable side effects."
25
informing consumers that smoking causes many forms of
cancer, as well as heart attacks, strokes, arterial diseases,
emphysema and chronic bronchitis, that it is highly
addictive, and that it causes severe harm to fetuses, young
children, and others inadvertently exposed to the toxins
and carcinogens in cigarette smoke.“ While most
Americans today know about most of these dangers:
{SJubstantial numbers of smokers are still
unaware of or do not accept important health
risks of smoking. For example, the
proportions of smokers in 1986 who did not
believe that smoking increases the risk of
developing lung cancer, heart disease,
chronic bronchitis, and emphysema were 15
percent, 29 percent, 27 percent, and 15
percent, respectively. These percentages
correspond to between 8 and 15 million
adult smokers in the United States.2
| Equally important, cigarette companies are obliged
to inform consumers not only about the nature of the
dangers posed by their products, but about the extent of
See, ¢.g., U.S. Dep’t of Health and Human Serv,,
of Progress. A Report of the Surgeon General (1989
98 - 99. —_—
2Id. at 244.
26
these dangers as well. For consumers to be able to make a
reasoned choice whether to smoke, they must understand
both the absolute risks to themselves of smoking,” and
how these risks compare to other risks they encounter in
daily life.
[MJost adults underestimate the impact of
smoking on longevity, according to a 1980
Roper survey. In this survey, 30 percent of
the population and 41 percent of smokers
did not know that a typical 30-year-old
smoker shortened his life expectancy at all
by smoking. Among those who did know
that smoking reduces one’s life expectancy,
many underestimated the
degree to which this is true.”
As consumers obtain more complete and accurate
information about the dangers of smoking, cigarette
26" Absolute risks can be described by the proportion of
those exposed to a given factor who will actually die or
develop the particular condition, or by the reduction of life
expectancy caused by exposure. As many as one-third of
heavy smokers aged 35 years will die before age 85 of
diseases caused by their smoking, and 30-year-old smokers
will shorten their lives an average of 6 to 8 years if they
smoke a pack a day.” Id. at 206 (references omitted).
21d. at 206
27
consumption -- along with its associated morbidity and
mortality -- declines. Thus, the 1989 Surgeon General's
Report estimated that, “By 1987, adult per capita cigarette
consumption would have exceeded its actual level by an
estimated 79 to 89 percent had the antismoking campaign
never occurred. "2
These public health gains have all been achieved in
the face of the cigarette companies’ best efforts to muddy
the waters. Youngsters experimenting with cigarettes, and
smokers thinking about quitting, are encouraged to avoid
confronting the unpleasant truths about the health effects of
smoking. Smoking has not been proven to cause lung
cancer or other diseases, insists the cigarette industry, and
the Surgeon General and other public health authorities are
simply mistaken in thinking that it has. See section C,
supra.
Thus, while it is not possible to quantify in advance
the public health benefits -- in terms of reduced
Id. at 661 - 662. Asa result of the decreased
consumption caused by the antismoking campaign, “an
estimated 789,000 deaths were postponed during the period
1964 through 1985", where "[t]he average life expectancy
gained per postponed death was 21 years", and
"[cJampaign-induced quitting and noninitiation through
1985 will result in the postponement or avoidance of an
estimated 2.1 million smoking-related deaths between 1986
and the year 2000." Id.
28
consumption, morbidity
cigarette companies to t
as other manufacturers,
and mortality -- from holding
he same common law consequences
they plainly will be substantial.
29
CONCLUSION
The judgment of the court of appeals upholding the
respondents’ claim of preemption should be reversed, and
the case remanded for further proceedings.
Respectfully submitted,
S. Stephen Rosenfeld
Stern, Shapiro, Rosenfeld
& Weissberg
80 Boylston Street
Suite 910
Boston MA 02116
(617) 542-0663
Richard A. Daynard APPENDIX
Northeastern University
School of Law
400 Huntington Avenue
Boston MA 02115
(617) 437-2026
Attorneys for the Amici
Six Former United States
Surgeons General, the
American Council on
Science and Health, and
the Tobacco Products
Liability Project
— - o.
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