Tormey v. American Tobacco Co., et al.

Plaintiff, a decedent and a non-smoker who had been exposed to second-hand smoke at work, brought suit against the defendants, tobacco companies, for failing to warn non-smokers after 1969 of health risks related to environmental tobacco smoke. The Court held that the claim was preempted by the Federal Cigarette Labeling and Advertising Act, which regulates the packaging and labeling of cigarettes and preempts health and smoke-related claims brought under state law related to the advertising and promotion of cigarettes.

Tormey v. American Tobacco Co., 48 A.D.3d 1063 (2008), 850 N.Y.S.2d 309, Appellate Division of the Supreme Court of the State of New York, Fourth Department (2008).

  • United States
  • Feb 1, 2008
  • Appellate Division of the Supreme Court of the State of New York, Fourth Department
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Parties

Plaintiff

  • Judith I. Tormey
  • Thomas M. Tormey

Defendant

  • American Tobacco Co.
  • Brown & Williamson Industries, Inc.
  • Brown & Williamson Tobacco Corp.
  • Liggett & Myers Tobacco Co.
  • Liggett Group, Inc.
  • Lorrilard Tobacco Co.
  • Lorrilard, Inc.
  • Philip Morris Companies, Inc.
  • Philip Morris, Inc.
  • R.J. Reynolds Tobacco Co.
  • RJR Nabisco, Inc.

Legislation Cited

Federal Cigarette Labeling and Advertising Act (as amended), 15 USC §§ 1331 - 1341

Federal Cigarette Labeling and Advertising Act, 15 U.S.C. § 1331

Related Documents

Type of Litigation

Tobacco Control Topics

Substantive Issues

Type of Tobacco Product

None

"Supreme Court properly granted the respective motion and cross motion of defendants-respondents (defendants) for partial summary judgment dismissing the second cause of action against them. Plaintiff alleged therein that defendants were negligent in failing to warn nonsmokers concerning the health risks of environmental tobacco smoke (ETS) after the year 1969, inasmuch as plaintiff's decedent, although not a smoker herself, was exposed to ETS from her coworkers. Pursuant to the Federal Cigarette Labeling and Advertising Act (15 USC § 1331 et seq.) (hereafter, Act), however, "[n]o requirement or prohibition based on smoking and health shall be imposed under State law with respect to the advertising or promotion of any cigarettes the packages of which are labeled in conformity with the provisions of this chapter" (15 USC § 1334 [b]). The United States Supreme Court has rejected a narrow construction of the phrase "based on smoking and health" (id.; see Lorillard Tobacco Co. v Reilly, 533 US 525, 548 [2001]), and we conclude that the second cause of action, for failure to warn, is necessarily "based on smoking and health" and therefore is preempted by the Act (15 USC § 1334 [b]; see Cipollone v Liggett Group, Inc., 505 US 504, 524 [1992]). In any event, requiring defendants to provide warnings to nonsmokers would necessarily involve "advertising or promotion" of cigarettes, the regulation of which is also prohibited by the Act (15 USC § 1334 [b]; see also Vango Media, Inc. v City of New York, 34 F3d 68, 73-75 [1994])."