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From Products Liability Law Daily, January 7, 2016

Florida state tort claims claims for cigarette sales not preempted by federal law

By Carol E. Potaczek, J.D.

Florida strict liability and negligence tort claims for cigarette sales were not preempted by federal law, according to a Florida appellate court, which then certified to the Florida Supreme Court the question of whether federal law implicitly preempts state law tort claims of strict liability and negligence by Engle-progeny plaintiffs based on cigarette sales (R.J. Reynolds Tobacco Company v. MarottaJanuary 6, 2016, Gerber, J.). The appellate court respectfully disagreed with a recent decision by the 11th Circuit in Graham v. R.J. Reynolds Tobacco Co. [see Products Liability Law DailyApril 9, 2015 analysis], which stated that Engle-progeny cases compel a conclusion that strict product liability claims amount to a ban on the sale of cigarettes, which, in turn would conflicts with Congress’s intent to regulate, not ban them.

R.J. Reynolds Tobacco Company (R.J. Reynolds) appealed a final judgment entered in favor of a decedent smoker’s estate, claiming that via federal law, namely, the 1965 Federal Cigarette Labeling and Advertising Act (FCLAA) and the 2009 Family Smoking Prevention and Tobacco Control Act (TCA), Congress has opted to regulate the sale of cigarettes, meaning that a state is not, therefore, free to ban their sale. R.J. Reynolds argued that the 11th Circuit had previously decided in Graham that Engle-progeny cases (1) applied across the board to all smokers, cigarettes and cigarette manufacturers; (2) dealt with conduct common to the class; and (3) lacked any requirement for a specific showing of how a certain defendant’s conduct caused injury. These factors, the 11th Circuit concluded, imposed a common-law duty on all cigarette manufacturers that would be breached whenever they sold cigarettes, effectively resulting in a ban on cigarette sales. The Graham court concluded that such a ban would conflict with Congress’s intent to regulate, not ban the sale of cigarettes.

Flaws in Graham reasoning. In upholding the decision of the circuit court, the state appellate court disagreed with the 11th Circuit in a number of ways. First, the effect of 10 years of Florida tort decisions since the Engle decision had been overstated, said the court, and did not amount to a ban on cigarette sales. When determining whether preemption was appropriate, it was the elements of common-law duty, and not the likelihood that a manufacturer will take any particular action in response to an adverse jury verdict, that should be analyzed, the court explained. Second, the state appellate court pointed out that it was incorrect that a state government cannot ban a product that Congress has chosen to regulate, and it pointed out that, despite the federal regulation of alcohol, there are still counties in the United States that ban its sale.

Third, the court pointed out that the FCLAA, relied on by the Graham court, contains regulations for the labeling and advertising of cigarettes, and Congress expressed its purpose in enacting the law as protecting commerce and the national economy by informing the public of the risks of smoking and ensuring that cigarette labeling and advertising were not diverse, non-uniform, or confusing. Ensuing regulations banned states from imposing their own regulations on cigarette labeling and advertising. However, nothing in the FCLAA preempted states from banning cigarette sales or from permitting state tort claims relating to cigarette production or sales.

The court conceded that the TCA grants the Food and Drug Administration (FDA) authority to regulate cigarettes and prohibits the FDA from banning them. However, the TCA specifically acknowledges states’ rights to prohibit tobacco sales. Furthermore, the TCA states that it does not, “…modify or otherwise affect any action or the liability of any person under the product liability law of any State.”

The court consequently determined that, because the Engle-progeny case decisions do not amount to a ban on cigarette sales, and because a state’s right to regulate tobacco in ways other than manufacturing and labeling have been expressly preserved by federal law, the circuit court did not err in holding that Florida negligence and strict liability tort claims were not preempted by federal law. The court then certified the question of whether or not Engle-progeny claims of strict liability and negligence are preempted by federal law to the Florida Supreme Court.

The case is No. 4D13-1703.

Attorneys: Gordon James III (Sedgwick LLP) and Gregory G. Katsas (Jones Day) for R.J. Reynolds Tobacco Co. Richard B. Rosenthal (The Law Offices of Richard B. Rosenthal, PA) for Phil J. Marotta.

Companies: R.J. Reynolds Tobacco Co.

MainStory: TopStory PreemptionNews TobaccoProductsNews FloridaNews

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