Search Penny Hill Press

Tuesday, February 1, 2011

Tobacco: Selected Legal Issues

Todd Garvey
Legislative Attorney

Over the past decade, the courts and the Congress have been grappling with tobacco-related issues. Among these issues are the Food and Drug Administration’s (FDA’s) authority to regulate certain tobacco products under the Federal Food, Drug, and Cosmetic Act (FDCA); the Master Settlement Agreement (MSA) that resulted from lawsuits brought by states’ attorneys general against tobacco companies; federal, private party, and foreign lawsuits against tobacco companies; limits on tobacco advertising; restrictions on selling and distributing tobacco to minors; and the Federal Trade Commission’s rescission of its 1966 guidance document relating to tar and nicotine yields in cigarettes. With the 2009 passage of the Family Smoking Prevention and Tobacco Control Act (FSPTCA), explicitly granting the FDA authority to regulate tobacco, a new wave of litigation has now made its way to the federal courts.

The FDCA gives the FDA authority to regulate food, drugs, devices, and cosmetics. In 1996, the FDA promulgated a final rule stating that, under the FDCA, it could regulate cigarettes and smokeless tobacco. In 2000, however, the U.S. Supreme Court found that Congress had not given the FDA regulatory power over tobacco and overturned the final rule in FDA v. Brown & Williamson Tobacco Corp. In 2009, Congress, in response to the Brown & Williamson decision, granted the FDA broad authority to regulate tobacco production, sales, and marketing under the FSPTCA.

In the 1990s, states’ attorneys general brought lawsuits for reimbursement of their states’ tobaccorelated medical expenses. They reached a settlement with tobacco companies in 1997, but the settlement did not garner the congressional approval needed for implementation. In 1998, 46 states, the District of Columbia, five U.S. territories, and the tobacco industry signed the MSA, worth $206 billion over 26 years.

In 1999, the Clinton Administration filed a lawsuit against major tobacco companies and industry trade groups to recoup federal tobacco-related medical costs. In 2006, a federal district court held that the tobacco companies violated two provisions under the Racketeer Influenced and Corrupt Organization Act (RICO) and, among other remedies, ordered them to remove descriptors such as light, low-tar, natural, mild, and ultra light from their packaging.

Since the U.S. Supreme Court’s 1992 decision in Cipollone v. Liggett Group Inc., individual and class action lawsuits have been brought against tobacco companies under theories such as fraudulent representation, conspiracy, breach of express warranty, and failure to warn. The private party suit section of this report discusses selected state class actions. Suits brought in federal courts by foreign governments for medical care costs resulting from tobacco-related illnesses have not been successful.

Tobacco advertising is restricted at the federal, state, and local levels. The Federal Cigarette Labeling and Advertising Act (FCLAA), the FSPTCA, state laws, the MSA, and local ordinances limit tobacco advertising in ways such as prohibiting radio and television advertisements, compelling the use of health warning labels, limiting the use of terms that imply decreased health risks, banning the use of cartoons, and requiring individuals to have contact with a sales person before purchasing tobacco products. Additionally, federal law plays a role in enforcing laws that prohibit tobacco sales and marketing to minors.

Date of Report: January 11, 2011
Number of Pages: 23
Order Number: RL33719
Price: $29.95

Follow us on TWITTER at or #CRSreports

Document available via e-mail as a pdf file or in paper form.
To order, e-mail
Penny Hill Press  or call us at 301-253-0881. Provide a Visa, MasterCard, American Express, or Discover card number, expiration date, and name on the card. Indicate whether you want e-mail or postal delivery. Phone orders are preferred and receive priority processing.