Tobacco Regulation: Tort Effect

A bill that would for the first time give the Food and Drug Administration (FDA) the authority to regulate the packaging, manufacturing and marketing of tobacco products heads for a vote in the Senate today where it is expected to win approval. The legislation has been welcomed by public health groups who predict it will have a positive effect by reducing the numbers of smokers and reducing the health care costs associated with tobacco-related illnesses. Under the bill the FDA would have the authority to restrict tobacco advertising, require changes in tobacco products (including ingredients) and ban the use of expressions such as “light† or “mild†. However, as Mark Berlind, a partner at A.T. Kearney points out in a June 8 editorial in the Wall Street Journal, a little-noticed provision of the bill is that it would continue to allow consumers to sue manufacturers even if they fully comply with the FDA’s content and labeling rules. “The regulatory regime that the legislation would establish can’t protect companies from tort liability – even if they rigorously follow every FDA rule,† Berlind writes, noting that the FDA legislation builds on the precedent recently established by the Supreme Court in Wyeth v. Levine. In that 6-3 opinion, the Court decided that federal approval does not preempt consumer complaints in state courts, effectively opening the floodgates to a wave of potential product liability tort suits against pharmaceutical companies at the state level.

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