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LA TIMES Highlights American Cancer Society (ACS) Preemption Controversy [12/16-5]
A recent article in the Los Angeles Times brought out into the open charges which have been swirling around the Internet and in other debates among and between antismoking activists.
The issues are whether the American Cancer Society advocated that Congress preempt (i.e., override) state laws in order to grant the tobacco industry special immunity, and whether the ACS is now wrongfully trying to deny having done it.
Below are excerpts from the Los Angeles Times article, followed by a summary of the charges as they were posted on the Internet (including the covering letter from the ACS to Congress), the response/defense of the American Cancer Society, and a link to the actual document the ACS sent out.
Please note, in trying to untangle the debate, that the accusers and the ACS seem to be using the word "preemption" in two very different senses. The ACS statement appears to refer only to preemption of state and local laws relating to smoking -- e.g., laws which prohibit smoking in public places or by teens. Those the ACS does seem to be opposed to preempting.
However the accusers -- those who say the ACS is promoting preemption -- seem to be referring not to preemption of state and local laws relating specifically to smoking, but rather to state public health and consumer protection laws regarding or creating legal liability for selling dangerous products, whether such law suits can be consolidated or brought in the form of class actions, whether punitive damages should be allowed in such suits, etc.
ASH suggests that you keep these two possible definitions in mind as you read the following materials.
EXCERPTS FROM LOS ANGELES TIMES ARTICLE:
SMOKING FOES SPLIT AS FACTIONS OPPOSE INDUSTRY IMMUNITY; HEALTH: AS CONGRESSIONAL BATTLE LOOMS, GROUPS STRUGGLE OVER HOW TO GAIN PASSAGE OF PROPOSED $368.5-BILLION SETTLEMENT. FISSURE MAY THREATEN THE DEAL, SOME SAY, by HENRY WEINSTEIN and MYRON LEVIN, Los Angeles Times [12/15/97]
In return, the industry would get a ban on lawsuits by the states and class-action claims, as well as prohibition of punitive damages in suits by individual smokers and a $ 5-billion annual cap on litigation damages.
However, the settlement would require new federal statutes to limit the type and scope of lawsuits against tobacco firms.
In an attempt to come to grips with that reality, the American Cancer Society commissioned Hogan & Hartson, a Washington law firm, to review the settlement. That inadvertently led to one of the most ferocious skirmishes in the war of the anti-tobacco groups.
In July, the ACS leaders declared that the settlement was fundamentally flawed. To buttress its position, the ACS disseminated a stinging critique of how the deal would severely curtail the ability of the FDA to regulate the tobacco industry and in particular to reduce the nicotine content of cigarettes.
Later in the summer, the society sent to all members of Congress a lengthy analysis of several constitutional issues raised by the settlement. The analysis was prepared by Hogan & Hartson.
The study told members of Congress there are three possible ways it could restrict litigation against tobacco companies without running afoul of the Constitution. Among the memo's options: Congress could enact legislation compelling states to pass laws barring class-action lawsuits against tobacco companies and prohibiting punitive damages in order to qualify for federal funds.
For many weeks, the memo drew little notice. Then it came to Godshall's attention, and he lobbed a verbal grenade, an e-mail to anti-tobacco activists, contending that the ACS had come out in favor of "preempting" state laws.
Cancer Society Against 'Preemption'
In the tobacco-control world, "preemption" is a fighting word. Historically, it has connoted efforts by Big Tobacco to prevent states and localities from passing laws that are tougher than those enacted by the federal government.
The American Cancer Society memo stated flatly that it opposed preemption of any state or local tobacco-control laws, such as those prohibiting smoking in restaurants.
"We're not for preemption. We want more state and local policies to keep the pressure up on the tobacco companies," Crawford said in an interview.
Godshall retorted that neither Crawford nor any other ACS official had disowned the memo or come out against giving the industry any special legal protections.
"Why are we fighting among ourselves?," Crawford lamented. "We're not a legal group. Public health is our primary concern."
But Daynard said Crawford's position failed to address the link between litigation and public health. He derided the memo as a "cookbook on how to cut off the legal rights of cancer victims."
CHARGES AS ORIGINALLY POSTED ON http://www.gate.net/%7Ejcannon/acs.html :
The following document, CONSTITUTIONAL ISSUES IN PROPOSED TOBACCO SETTLEMENT, was prepared by Hogan & Hartson (a Washington, DC law firm) and was sent to each member of Congress by the national office of American Cancer Society.
This document advocates congressional action to PREEMPT numerous state consumer health protection laws in order to protect the tobacco industry from legal liability, as well as delineating complex preemption schemes that could survive constitutional challenges.
COVER LETTER TO MEMBERS OF CONGRESS
CONSTITUTIONAL ISSUES IN PROPOSED TOBACCO SETTLEMENT
there are many ways of structuring these provisions to avoid constitutional difficulties
the American Cancer Society recommends that Congress give the States the choice of amending their laws of civil procedure to satisfy federal standards, or having their laws preempted by a federal act that creates federal jurisdiction over tobacco-related claims
Under this scheme, Congress would condition the receipt of federal funds upon the States' amendment of their laws of civil procedure, but in the event that some States choose not to amend their laws, Congress would preempt inconsistent state laws.
Because there is no right to punitive damages, as well as the fact that Congress may limit liability as a means of achieving social goals, the elimination of punitive damages is consistent with both procedural and substantive due process requirements.
the annual liability caps and the prohibition on class actions and joinder of claims do not violate due process.
FIRST AMENDMENT IMPLICATIONS OF THE MARKETING AND ADVERTISING RESTRICTIONS OF THE SETTLEMENT
TENTH AMENDMENT AND FEDERALISM ISSUES UNDER THE TOBACCO SETTLEMENT
We outline below four methods whereby Congress could implement the Settlement's envisioned restructuring of civil suits relating to tobacco and health in a manner that is likely to withstand constitutional scrutiny: (1) Congress may preempt state laws of procedure that conflict with the federal law, (2) Congress may create federal jurisdiction over tobacco lawsuits, (3) Congress could condition the receipt of federal funds upon the States' amendment of their own laws of procedure, and (4) Congress may offer the States the choice of amending their laws to conform to federal standards or having State law preempted by a federal law that creates federal jurisdiction over tobacco related claims.
Under the first option, Congress would pass a statute that exercises its unquestioned power to preempt state laws. To this end, Congress would outline the procedures to govern state civil suits related to tobacco and health and expressly state that these procedures preempt state laws that conflict with them.
This option has the advantage of encouraging the States to amend their own laws ... before a federal solution is imposed.
Congress may also consider simply creating federal jurisdiction over tobacco-related suits, so they may be brought in or removed to federal court, where Congress has unquestioned authority to dictate the procedures.
Congress may also follow a third option and condition the receipt of federal funds upon the States' amendment of their own laws of procedure for tobacco related cases.
Where Congress has the authority to regulate activity under the Commerce Clause, the Supreme Court has recognized Congress' power "to offer States the choice of regulating that activity according to federal standards or having state law pre-empted by federal regulation."
THE DUE PROCESS IMPLICATIONS OF THE SETTLEMENT'S LIMITATIONS ON CIVIL LIABILITY
just as limiting liability was an acceptable policy for encouraging nuclear power development, limiting liability should be an acceptable means of encouraging tobacco companies to participate in a national effort to reduce smoking and improve public health.
no court has ever held that plaintiffs have a substantive due process right to consolidate or aggregate their claims.
THE EQUAL PROTECTION IMPLICATIONS OF THE SETTLEMENT'S CIVIL LIABILITY LIMITATIONS
a court would readily find a legitimate government purpose for imposing damage limitations in cases involving tobacco-related injuries.
A court would be hesitant to overturn Congress' thoughtful determination that the liability caps are an integral aspect of the legislation.
Hence, a court will defer to the Congressional determination that the liability limitations are rationally related to the legitimate government purposes advanced by the Act.
The recent settlement between the tobacco industry and state attorneys general has prompted renewed public attention to issues of tobacco control. In order to promote public awareness and understanding of these critical public health issues, the American Cancer Society, on behalf of its more than 2 million volunteers, has prepared briefing materials regarding major policy issues on tobacco control. This analysis includes a thorough evaluation of the original FDA rule, information on the regulation of nicotine as a drug, facts on the health aspects of smoking, and other issues. We understand you will be acing on this issue in the next several months and offer to you our expertise during the process.
We present this document as part of a three stage process. Within the next week we will also be forwarding to you a complete analysis of the legal and constitutional ramifications of the settlement and the American Cancer Society's review of the proposed settlement with recommendations. Thereafter, throughout the next several months we will be forwarding to you background information as it is developed specific to questions or issues Congress and the public might have on tobacco control and policy implications.
While the American Cancer Society believes the comprehensive legislation which will result from the settlement discussions has more potential for advancing public health than the uncertain outcome of lengthy continued litigation or piecemeal legislation, we do have serious concerns. There are major elements of the current settlement proposal that will require substantial revision for the agreement to succeed in its most important potential benefit to public health – reducing tobacco use and therefore tobacco-caused disease and death.
If you have any questions, or would like additional information specific to your state and district, please do not hesitate to call Linda Hay Crawford, National Vice-President of Federal and State Government Relations (x147) or Susan Polan, Director of Federal Government Relations (x124) at (202) 546-4011.
Thank you for your time and attention to this critical public health matter.
Sincerely,
316 PENNSYLVANIA
AVE., S.E., SUITE 200, WASHINGTON, DC 20003-1146 202-546-4011
* FAX 202-546-1682
RESPONSE OF THE ACS TO CHARGES OF PROMOTING PREEMPTION:
The summary of the ACS's document "Constitutional Issues In Proposed Tobacco Settlement," being circulated . . . totally mischaracterizes the American Cancer Society's position on the issue of preemption.
ACS does not endorse the preemption of state or local tobacco control measures that are more stringent than federal standards. To the contrary, the ACS expressly stated in its constitutional analysis: To the extent that the [proposed settlement] preempts state licensing and "no sales to minors" laws, it is imperative that the Act's language clarify that such preemption would not prevent states and localities from enacting more stringent standards than those included in the Act.
The American Cancer Society believes that the Act must not set a ceiling on state and local tobacco control -- it need set only a floor.
The ACS's position on preemption is consistent and well-settled: although the federal government should enact broad-based measures to effectively protect the public health from the harms of tobacco use, states and localities should be permitted and encouraged to enact measures that are more stringent than the federal standards. Anyone that suggests the contrary is either unintentionally misinformed or purposely misrepresenting the ACS position.
Anyone having questions on ACS tobacco control policy should please feel free to call Linda Crawford, National Vice President for State and Federal Government Relations at (202) 546-4011, ext. 147.
FOR MORE INFORMATION, SEE THE FOLLOWING INSTRUCTIONS:
To see or download a complete copy of the mailing the American Cancer Society sent to Members of Congress regarding the constitutional issues of tobacco legislation, click here to see Jack Cannon's page [http://www.gate.net/%7Ejcannon/acs.html]
If you experience problems reading the full text of the document at the web site above, please click here for a text-only version [http://ash.org/nov97/acstext.htm]
click here to return to ASH's Home Web Page:
http://ash.org
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