FDA will not protect tobacco companies from tort liability

Brenda Fulmer

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On Tuesday, President Barack Obama signed legislation that will empower the Food and Drug Administration (FDA) to regulate tobacco products. The law will allow the FDA to require that warning labels take up 50%of the space on individual packs of cigarettes and it will ban the use of words such as “light” or “mild” that might give the impression that such products are somehow safer. Further focus will be put on making smoking less inviting to young people through a stronger regulation of tobacco advertising. This is certainly a big win for the country’s general welfare, but it does not come at a loss for consumers wishing to bring suits against big tobacco.

A practically unnoticed provision of the law provides, “No provision of this chapter [i.e., the ‘Family Smoking Prevention and Tobacco Control Act’] relating to a tobacco product shall be construed to modify or otherwise affect any action or the liability of any person under the product liability law of any State.” More succinctly, the regulatory system that the FDA will establish will not protect tobacco companies from tort liability.

This provision builds off of the recent Supreme Court ruling in Wyeth v. Levine, where the Court held, 6-3, that even if a drug has been approved by the FDA, patients may still sue the drug manufacturer in state court. The ruling in Wyeth provided that the FDA only sets the minimum level of labeling and that a stronger warning label may be required by individual states. Further Wyeth held that in areas traditionally governed by individual states but recently made subject to federal law, the powers of the states are “not to be superseded by a Federal Act unless that was the clear and manifest purpose of Congress.” As the intent of the newly passed legislation was to weaken the tobacco industry, it is unlikely that an argument that the law gave new protection to big tobacco would succeed. With this in mind the recent successes of the Engle plaintiffs should only continue.