BIG TOBACCO: Judge Rejects Four of Five Claims Pinned on Prop. 65
Delivering a major victory and a minor defeat to Big Tobacco, San Diego Superior Court Judge Ronald Prager yesterday denied Los Angeles and San Jose the right to sue the nation's four largest cigarette companies but allowed an environmental advocacy group's fraud claim against the manufacturers to go to trial, the Los Angeles Times reports. The cities' claims were based on the idea that the tobacco firms had a duty to warn consumers of secondhand smoke dangers under Proposition 65 -- one of the most comprehensive chemical hazard warning laws in the country. Prager explained that his rejection of the Prop. 65-based claims revolved around the fact that it was undisputed that the firms had a "wholesale lack of control over the exposure of 'secondhand smoke' to non-consumers" of cigarettes. Philip Morris' Associate General Counsel Stephen Krigbaum applauded the judge's ruling, saying the "heart of the case is gone." Roger Carrick, special counsel to Los Angeles City Attorney James Hahn, said he was "disappointed" over the rejection of the Prop. 65-based claims and that he would encourage Hahn to appeal.
Opening the Door
The claim in the suit that was accepted -- filed by the American Environmental Safety Institute, an environmental advocacy group - - alleges that cigarette companies "engaged in fraudulent and unfair business practices by denying that environmental tobacco smoke causes cancer, asthma, reproductive toxicity, sudden infant death syndrome and other maladies." Anti-tobacco advocate Matthew Myers, president of the Campaign for Tobacco Free Kids, said the decision might "open the door to litigation that could be damaging" to the tobacco companies. Carrick and Myers agreed that Prager's decision could be dangerous for the cigarette companies, since he rejected their contention that "summary judgment should be granted on the entire suit because such broad- gauged suits were barred as a consequence of the December 1998 national tobacco settlement." Prager said the wording of that settlement "seemingly precludes" the collective claims for conduct occurring before the settlement was finalized. He added that because the allegations of the case include conduct said to occur after the date of the settlement, and because the plaintiffs are requesting changes in company practices rather than damages, the case could proceed. Myers said, "The decision clearly opens the door for the type of litigation which the industry has long feared -- a determination of their wrongdoing on important health issues where the cigarette companies can't blame an individual smoker. As long as the relief sought is something other than a state or local government seeking reimbursement for medical expenses related to smoking, this ruling opens the door for government agencies and others to sue the tobacco industry for ongoing wrongdoing." Carrick said that if the plaintiffs win, they will want the companies to institute a major media campaign warning of the hazards of secondhand smoke (Weinstein, 1/7).