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FDA law could affect punitive and equitable tobacco claims

A bill that will give the Food and Drug Administration the authority to regulate tobacco products could make it harder for plaintiffs to obtain punitive and equitable remedies in tobacco cases.

The measure is expected to be signed by President Barack Obama soon.

“I’m sure companies will try to wrap themselves with the cloak … of being regulated by the FDA, and given that fact, punitive damages might be minimized,” said Edward Sweda, senior attorney for the Tobacco Products Liability Project at Northeastern University School of Law in Boston.

The law, which was passed by Congress last week, will allow the FDA to regulate - but not ban - cigarettes.

Among other things, the law will require tobacco companies and importers to reveal all tobacco product ingredients and seek FDA approval for any new products. It will also enable the FDA to order stronger warning labels on tobacco products, and even demand changes or elimination of toxic substances. The FDA can impose user fees on tobacco companies to pay for the regulations.

The bill also provides for the creation of a tobacco control center within the FDA and gives the FDA the authority to regulate the content, marketing and sale of tobacco products.

“For over a decade leaders of both parties have fought to prevent tobacco companies from marketing their products to children, and provide the pubic with the information they need to understand what a dangerous habit this is,” Obama said Friday in comments at the White House marking the bill’s passage.

Impact on tobacco claims

The new law does not have a preemptive effect on state-based civil claims, so compensatory tobacco litigation will largely be unaffected.

“The impact of the bill will be relatively subtle and quite modest on a whole,” Sweda said.

Adam Trop, an attorney at the Hollywood, Fla.-based firm Paige, Trop & Ameen, said the bill’s express non-preemptive language, coupled with a recent Supreme Court ruling upholding plaintiffs’ right to file state law claims over tobacco companies’ deceptive marketing of “light” or “low tar” cigarettes, protect civil claims.

“I don’t have any concerns that regulation of the tobacco industry will have a negative impact on consumers’ right to file a lawsuit for their injuries or for the loss of a loved one,” Trop said.

If the FDA establishes more stringent rules for tobacco companies governing the marketing, warning labels and even the contents of tobacco products, it could become more difficult for plaintiffs to punish tobacco companies for practices that are allowed under such a tightened regulatory environment, lawyers said.

In a statement after the bill passed the Senate, Altria Group, the parent company of Philip Morris, said that the new law will “establish a regulatory structure and standards for the manufacturing and marketing of tobacco products” - a hint that once the FDA sets these standards, it will argue that tobacco companies can’t be punished as long as they adhere to them.

As a result, it might be harder for plaintiffs to obtain punitive damages in tobacco cases.

The new law could also make it tougher for litigants to force tobacco companies to change their practices.

“Efforts by state attorneys general to try to further enforce the master settlement agreement or to take up regulatory action to try to get a court to crack down on particular practices in the industry will be affected, if the particular practice is already covered by the FDA regulations,” Sweda said.