TOBACCO CONTROL LAWS

Philip Morris v. Harshbarger

Nine manufacturers of cigarettes and smokeless tobacco products challenged the constitutionality of a Massachusetts law requiring the companies to report on all ingredients added to their tobacco products. In particular, the tobacco manufacturers claimed that brand-by-brand reporting requirements and public disclosure of ingredients violated several Constitutional protections, including the Takings Clause, the Commerce Clause, and the Due Process Clause, without providing the assurances of confidentiality of trade secrets that existing federal legislation provided. The U.S. District Court for the District of Massachusetts restrained Massachusetts from enforcing the reporting requirements. In the present case, the U.S. Court of Appeals for the First Circuit affirmed that decision.

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Philip Morris, Incorporated, et al. v. Harshbarger, et al., 159 F.3d 670, United States Court of Appeals, First Circuit (1998).

  • United States
  • Nov 6, 1998
  • United States Court of Appeals, First Circuit
View Case History

Parties

Plaintiff

  • Scott Harshbarger, Attorney General of Massachusetts
  • Thomas A. Barnico, Assistant Attorney General
  • William W. Porter, Assistant Attorney General

Defendant

  • Brown and Williamson Tobacco Corporation
  • Conwood Company
  • Lorillard Tobacco Company
  • National Tobacco Company
  • Philip Morris Incorporated
  • Pinkerton Tobacco Company
  • R.J. Reynolds Tobacco Company
  • Swisher International Incorporated
  • United States Tobacco Company

Legislation Cited

Massachusetts General Laws, Ch. 94, Section 307B

Related Documents

None

Type of Litigation

Challenge to Government Policies Relating to Tobacco Control/Public Health
Tobacco companies or front groups may challenge any legislative or regulatory measure that affects their business interests. Unlike public interest litigation, these cases seek to weaken health measures. These cases frequently involve the industry proceeding against the government. For example, a group of restaurant owners challenging a smoke free law as unconstitutional.

Tobacco Control Topics

Contents and Disclosures Measures
Measures for testing, measuring, regulating, or disclosing the contents and emissions of tobacco products. (See FCTC Arts. 9 and 10)

Substantive Issues

Right to Commerce
A violation of the right to carry on trade, business, or profession of a person’s choice. This right may also be called the right to free enterprise or economic freedom. The industry may argue that a business should be able to conduct its business without government regulation, including whether or not to be smoke free.
Right to Procedural Due Process
A violation of the right to procedural fairness. For example, a party may claim that a government agency did not consult with public or stakeholders when issuing regulations.
Right to Property
A violation of property rights, sometimes in the form of an expropriation or a taking by the government. The tobacco industry may argue that regulations amount to a taking of property rights because they prevent the use of intellectual property such as trademarks.
Trade Violation
A claim of an infringement of any international trade agreement, including General Agreement on Tariffs and Trade (GATT), Technical Barriers to Trade (TBT), Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), or bilateral treaties.
Preemption
The subject matter of the case should be dealt with at a state level or national level.

Type of Tobacco Product

None

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