TOBACCO CONTROL LAWS

Fogle v. H & G Restaurant

A number of businesses, trade associations, and tobacco companies filed an action to halt the implementation of a Maryland regulation prohibiting smoking of tobacco products in specifically identified public areas, claiming, among others, that the regulation's implementation would constitute a violation of the rights to freedom of expression, due process, property, and privacy. A circuit court granted the plaintiffs' request to halt the regulation's implementation, and the State of Maryland appealed the decision. The Court of Appeals of Maryland overruled the lower court's decision to halt implementation of the prohibition. Among its considerations, the Court of Appeals found that Maryland sufficiently demonstrated the scientific evidence concerning the harms of environmental tobacco smoke necessary to justify the regulation, that the economic impact of the regulation would not be overly burdensome of the plaintiffs' businesses, and that the regulation was written clearly enough to avoid confusion that could prejudice its implementation against the businesses' interests.    

Fogle, et al. v. H & G Restaurant, Inc., et al., 654 A.2d 449, Court of Appeals of Maryland (1995).

  • United States
  • Feb 24, 1995
  • Court of Appeals of Maryland
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Parties

Plaintiff H & G Restaurant, Incorporated

Defendant

  • Department of Licensing and Regulation of the State of Maryland
  • Division of Labor and Industry
  • Henry A. Koellein, Commissioner of the Division of Labor and Industry
  • William A. Fogle, Secretary of the Department of Licensing and Regulation of the State of Maryland

Legislation Cited

Code of Maryland Regulations, section 09.12.23 ("Prohibition on Smoking in an Enclosed Workplace")

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

Smoke Free Measures
Measures to reduce or eliminate exposure to tobacco smoke. (See FCTC Art. 8)
Protection of Environment
Measures involving the environment and health of persons in respect to cultivation and manufacture within their territories. (See FCTC Art. 18)

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 Freedom of Expression
A violation of the right to expression, free speech or similar right to express oneself without limitation or censorship. The industry may claim that a regulation infringes on their right to communicate with customers and the public. Similarly, they may claim that mandated warnings infringe on their freedom to communicate as they desire.
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.
Right to Privacy
This is the right to a private personal and family life without intrusion from the government.
Excessive Delegation of Authority to the Executive
The legislative branch, through its tobacco control legislation, may have granted too much authority to the executive branch to implement measures administratively.
Preemption
The subject matter of the case should be dealt with at a state level or national level.
Sufficiency of Scientific Evidence
A discussion on whether current scientific evidence is sufficient to justify the regulatory measures.
Ultra Vires Regulation
Subsequent regulations exceed the scope of the originating law.
Undue Burden
A discussion on whether the regulations impose an undue burden on the tobacco industry. This argument may involve the costs of implementing regulatory measures.

Type of Tobacco Product

None

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