February 2014 Newsletter

Surgeon General Releases New Report on Health Consequences of Smoking
Tobacco Companies Reach Agreement on Placement of Court-Ordered “Corrective Statements”- then Promptly File Suit Challenging Statements’ Wording
New York City Adopts New Tobacco Control Measures – Tobacco Companies Challenge Price Discounting Restrictions
New York City Sues FedEx for Illegal Shipment of Cigarettes
Participate in FDA Rulemaking – Submit Your Comments
CDC Releases Best Practices for Comprehensive Tobacco Control Programs-2014 and Notes NY Leads in Decline of Smoking Rates
Center Updates
Fellowship Opportunity at the FDA

Surgeon General Releases New Report on Health Consequences of Smoking

On Friday, January 16, 2014, the Surgeon General released a report which not only commemorates the 50th anniversary of the first Surgeon General’s Report on Smoking and Health, but also details the history of tobacco control in the United States. The report identifies new evidence about the devastating health consequences of tobacco use and highlights tobacco control strategies most likely to end this epidemic.

Since Surgeon General Luther Terry published his report in 1964, knowledge of the health effects of tobacco, particularly combustible tobacco, has greatly expanded.  Additionally, tobacco control programs have more experience with innovative and evidence-based policy interventions that reduce tobacco use. The current report draws several important conclusions, including:

  • Smoking continues to have a devastating impact on public health.  It causes approximately 1 of every 5 deaths in the U.S. and costs the nation at least $289 billion each year in medical costs and lost productivity  (nearly $100 billion more than previously reported);
  • Research has identified new causal connections between smoking and disease,  including diabetes, liver and colorectal cancer, and rheumatoid arthritis;
  • Significant disparities in tobacco use continue to exist across racial/ethnic groups and between groups defined by level of education, socioeconomic status, and region;
  • Modern cigarettes are more deadly than those smoked in 1964, due to changes in the design and composition of cigarettes.  Thus, while smoking rates have declined since 1964, and users are smoking fewer cigarettes on average, smokers today are at higher risk of lung cancer and heart disease;
  • Current tobacco control efforts are insufficient to reduce tobacco use over the coming decades fast enough to meet public health goals.  Additional action is necessary;
  • New “end game” strategies may prove useful in the U.S., including reducing nicotine content in tobacco products and restricting sales of tobacco products (including bans on entire categories of products).

The report calls out the tobacco industry for deliberately misleading the public on the risks of cigarette smoking and using aggressive tactics to recruit young “replacement smokers.” Moreover, the report reiterates its conclusion that tobacco industry advertising and promotional activities cause the onset and continuation of smoking among adolescents and young adults.

The evidence demonstrates that comprehensive, well-funded statewide and community tobacco control programs that include policy interventions (such as price increases and smoke-free air policies), as well as cessation services and mass media campaigns prevent initiation of tobacco use and reduce the prevalence of tobacco use among youth and adults alike.  In order to continue making strides against the most preventable cause of disease, disability and death in this country, tobacco control programs must utilize all of the tobacco control tools available.

You may read the executive summary or the entire report for more detailed information.

Tobacco Companies Reach Agreement on Placement of Court-Ordered “Corrective Statements”- then Promptly File Suit Challenging Statements’ Wording

The U.S. Department of Justice and major tobacco companies recently told a federal court that they reached an agreement on the implementation details of a court-ordered advertising campaign aimed at correcting tobacco companies’ past “false and misleading claims.”  U.S. District Court Judge Kessler’s 2012 order follows her 2006 decision in United States v. Phillip Morris, where she found that the companies violated civil racketeering laws under the Racketeer Influenced and Corrupt Organization Act (RICO) and “deliberately deceived the American public” through concealment of the known health risks of smoking, lying to the public about the dangers of smoking, and marketing to children.

In the January 2014 agreement, each company agreed to publish full-page ads in the Sunday editions of 35 newspapers and air prime-time TV commercials on CBS, ABC or NBC five times per week for a year. (Notably, other broadcasters quickly filed papers requesting these corrective ads also be played on their networks, a move which could delay finalizing the agreement.) The companies must also publish the statements on their websites and affix them to a certain number of cigarette packs three times a year for two years. Text font and size for newspaper statements and pixel size for online space were also agreed upon. The court still needs to approve the proposed implementation plan.

However, there is no agreement pertaining to the wording of the required “corrective statements” used in the advertising campaign, which must address the companies’ past deceptions in regards to the following five areas: 1) the health effects of smoking; 2) the addictiveness of smoking and nicotine; 3) the false advertising of low-tar and light cigarettes as less harmful than regular cigarettes; 4) the designing of cigarettes to enhance the delivery of nicotine; and 5) the health effects of secondhand smoke. In fact, tobacco companies appealed proposed corrective statements, arguing that the statements should only address the health effects and addictiveness of their products; they claim requiring statements to reporting companies’ past deceptive actions  (manipulating the public into believing there were “safer” tobacco products; manipulating tobacco products  to increase addictiveness by altering nicotine levels) violates companies’ Free Speech rights.

Though Judge Kessler’s original order required the companies to make the corrective statements through retail point of sale (POS) displays, litigation is also pending over whether the companies must make the corrective statements in those locations. To read more about her order and the United States v. Phillip Morris decision, please visit our case law page.

New York City Adopts New Tobacco Control Measures – Tobacco Companies Challenge Price Discounting Restrictions

Late last year, New York City enacted three new laws to further regulate smoking and tobacco product sales. In November of 2013, New York City became the first major city or state in the U.S. to adopt a minimum purchase age of 21 when the City Council enacted 2013 Tobacco 21. This law increases the purchase age from eighteen to twenty-one years for cigarettes and tobacco products, including electronic cigarettes (e-cigarettes).

In December of 2013, the City Council amended the Smoke-Free Air Act, extending the law to include e-cigarettes. The Smoke-Free Air Act bans smoking in public places such as restaurants, bars, parks, beaches, and places of employment. It now also prohibits the use of e-cigarettes, which are not yet regulated by the FDA, in those areas where smoking is prohibited.

The City Council also enacted the “Sensible Tobacco Enforcement Policies” (STEP), designed to combat illegal cigarette smuggling and impose certain pricing restrictions on tobacco product sales. The bill increases penalties for retailers who evade cigarette taxes or sell without a license; prohibits retailers from redeeming coupons or honoring other price discounts for cigarettes and tobacco products; establishes a minimum price for cigarettes and little cigars and prohibits their sale below this price; requires cheap cigars (individual list price three dollars or less) be sold in packages of at least four; and requires little cigars be sold in packages of at least twenty.

On January 30, 2014, the National Association of Tobacco Outlets joined with the New York Association of Convenience Stores and 6 major tobacco companies (plaintiffs) to file suit against the city. Specifically, the plaintiffs are challenging STEP’s discount restrictions, arguing they violate the First Amendment of the U.S. Constitution and New York State law, and are preempted by the Federal Cigarette Labeling and Advertising Act (FCLAA). A similar (and unsuccessful) challenge was made to comparable price restrictions adopted by the city of Providence, Rhode Island. However, while the First Circuit Court of Appeals upheld the Providence law, that decision is not binding on New York courts.

New York City Sues FedEx for Illegal Shipment of Cigarettes

New York City filed a civil lawsuit in the U.S. District Court in Manhattan alleging that FedEx impermissibly shipped untaxed cigarettes as part of a partnership with New York’s Shinnecock Indian Nation Smoke Shop to residential homes.  The alleged shipments violate a 2006 settlement between FedEx and New York State to stop deliveries of cigarettes to New York residences.  The city claims that from 2005 to 2012, FedEx delivered about 55,000 cartons of cigarettes to city residents in 9,900 shipments, depriving the city of the $15 per carton excise tax. The city also claims that FedEx’s activity violated various federal and state laws, including an anti-racketeering statute. The city wants FedEx to pay a $49.5 million fine, equal to $5,000 per shipment, plus $2.48 million, which is triple the lost tax revenue. The city is also asking that FedEx hire an independent monitor to ensure future compliance and provide training to FedEx employees.

New York City and state officials have fought in court for a number of years to collect taxes on cigarettes sold by Native American-owned businesses. In March of 2013, FedEx paid $2.4 million to settle the city’s previous claim that it delivered 160,000 cartons of untaxed cigarettes from a Kentucky-based website from 2006 to 2009. In response, FedEx said it has stopped doing business with known shippers of untaxed cigarettes and will defend itself in this case. The company added that it does not open packages without a reason. Smith’s smoke shop is not a defendant in the lawsuit, but it could be named in later litigation. Many New York tribes, including Shinnecock Nation, claim that their smoke shops are not subject to state and local taxes.

Participate in FDA Rulemaking – Submit Your Comments

Ask the FDA to assert jurisdiction over all tobacco products.

The Family Smoking Prevention and Tobacco Control Act granted the U.S. Food and Drug Administration (FDA) limited authority to regulate tobacco products.  The statute only required the FDA to regulate cigarettes, cigarette tobacco, smokeless tobacco and roll-your-own tobacco.  However, it permits the FDA to assert jurisdiction over other tobacco products—such as e-cigarettes, cigars, dissolvable products, and hookah.

The Tobacco Control Legal Consortium, together with state and local health departments (including New York Department of Health) and other health organizations, filed a Citizen Petition in September of 2013 requesting that the FDA take affirmative steps to assert jurisdiction and regulate all tobacco products.  You may submit comments on the docket, including scientific data, local survey data, and evidence of the public health impact of other tobacco products.  Presently, there is no deadline to submit comments.  However, as soon as the FDA takes action, it will stop accepting public comments, so we suggest you submit your comments as soon as possible.

The Tobacco Control Legal Consortium has prepared suggested talking points, as well as a document highlighting key points of the Citizen Petition.  For more information about submitting comments to the FDA generally, see our Guide to Locating and Commenting on Proposed Federal Regulations.

Support Development and Implementation of National “Track and Trace” System

In March of 2013, the New York City Department of Health and Mental Hygiene, together with the Tobacco Control Legal Consortium and other advocacy groups, filed a Citizen Petition requesting the FDA develop and implement a federal “track and trace” system to monitor the distribution of tobacco products from manufacturer to retail outlets.  Such a system would assist enforcement agencies to crack down on diversion of cigarettes into illegal markets, a problem that impacts New York City and New York State due to their innovative tobacco control policies, such as high excise taxes.

The Tobacco Control Network has developed suggested talking points for comments submitted in support of this petition.  Campaign for Tobacco Free Kids has also prepared suggested talking points for your use.  For more information about submitting comments to the FDA generally, see our Guide to Locating and Commenting on Proposed Federal Regulations or contact the Center.

CDC Releases Best Practices for Comprehensive Tobacco Control Programs-2014 and Notes NY Leads in Decline of Smoking Rates

On January 30, 2013 the Center for Disease Control released its Best Practices for Comprehensive Tobacco Control Programs-2014. Best Practices 2014 is “an evidence-based guide to help states plan and establish tobacco control programs.” It provides guidance on how to develop and implement proven tobacco control interventions and recommends levels of state investment. The update reflects current understanding of the science and evidence of tobacco control.

New York tobacco control contractors will recognize many of the recommendations in Best Practices 2014, as they echo the current on-the-ground work.  The CDC identifies “state and community interventions” as an essential component of tobacco control programs. Best Practices 2014 highlights that the work of community programs is to “counter aggressive pro-tobacco influences” by working to change the attitude, knowledge, and practices of tobacco users and non-users, as well as “engage in strategies to address the manner in which tobacco is promoted, the time, manner, and place in which tobacco is sold, and how and where tobacco is sold.” (Emphasis added).

The Introduction  to Best Practices 2014 also highlights that from 2001-2010, the New York State Tobacco Control Program reported declines in smoking rates among adults and youth ahead of national declines. As a result, New York saved $4.1 billion in smoking-related personal health care expenditures, compared to expected expenditures if smoking rates had stayed at 2001 levels.

Center Updates

In November, Center Director Ilana Knopf and Staff Attorney Sarah Herbert participated in smoke-free housing community education events. It was a great opportunity to see smoke-free housing advocates working as vital resources for community members learning about implementing a smoke-free policy. We would like to thank Manhattan Smoke-Free Partnership and Queens Smoke-Free Partnership for inviting us!

The Center would also like to welcome second-year New England Law Boston student Paul Donegan as our Spring 2014 Law Clerk.

Fellowship Opportunity at the FDA

The U.S. Food and Drug Administration’s Center for Tobacco Products (CTP) is seeking applications for its Tobacco Regulatory Science Fellowship, a collaborative program of CTP and the Institute of Medicine (IOM). The fellowship is a 12 month program. The application period closes March 3rd, 2014. For more information please visit their website.