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
Some jurisdictions allow an individual or organization to initiate an action against another private party who is not following a particular law. For example, a person may sue a restaurant that allows smoking despite a smoke free law. If the plaintiff is claiming the violation of the law caused physical harm, this may also be a personal injury case.
An individual or organization may seek civil damages against a tobacco company based on the claim that the use of tobacco products causes disease or death. Some of these cases will relate to general tobacco products, while others will relate to specific subcategories of tobacco products--for example, light or low products, menthol or other flavored products. Additionally, there may be cases relating to exposure to secondhand smoke.
Measures to regulate the marketing on tobacco packages. This includes both bans on false, misleading, deceptive packaging, as well as required health warnings on packaging.
(See FCTC Art. 11)
Any violation of a law designed to ensure fair trade, competition, or the free flow of truthful information in the marketplace. For example, a government may require businesses to disclose detailed information about products—particularly in areas where safety or public health is an issue.
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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"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])."
Limitations regarding the use of quotes The quotes provided here reflect statements from a specific decision. Accordingly, the International Legal Consortium (ILC) cannot guarantee that an appellate court has not reversed a lower court decision which may influence the applicability or influence of a given quote. All quotes have been selected based on the subjective evaluations undertaken by the ILC meaning that quotes provided here may not accurately or comprehensively represent a given court’s opinion or conclusion, as such quotes may have originally appeared alongside other negative opinions or accompanying facts. Further, some quotes are derived from unofficial English translations, which may alter their original meaning. We emphasize the need to review the original decision and related decisions before authoritatively relying on quotes. Using quotes provided here should not be construed as legal advice and is not intended to be a substitute for legal counsel on any subject matter in any jurisdiction. Please see the full limitations at https://www.tobaccocontrollaws.org/about.
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.