Using the Law to Protect Health: The Frustrating Case of Smoking

See Schuman L.M. , The Benefits of the Cessation of Smoking, Chest 59:421–27 (1971) (lost life expectancy is primarily a function of the number of years an individual smokes); Holcomb H.S. Wilmeigs J. , Medical Absenteeism Among Cigarette and Cigar and Pipe Smokers, Archives of Environmental Health 25:295–300 (1972).

See Report of the National Task Force on Tobacco and Cancer 4 (American Cancer Society) (1976); Epstein S.S. , The Politics of Cancer 171 (Sierra Club Books, San Francisco) (1978); [hereinafter cited as The Politics of Cancer] Rief A.E. , Public Information on Smoking: An Urgent Responsibility for Cancer Research Workers, Journal of the NationalCancer Institute 57:1207–10 (December 1976) (one quarter of all cancer deaths in the United States are caused by smoking) [hereinafter cited as Rief, Public Information on Smoking].

Morbidity & Morality Weekly Report 26:145 (May 6, 1977).

See Rief, Public Information on Smoking, note 2 supra, at 1208 (cigarette smoking is most important cause of chronic bronchitis and emphysema); DHEW Press Release to National Interagency Council on Smoking and Health (January 11, 1978) (85 percent of deaths from bronchitis, emphysema and other lung disease would not happen if people would stop smoking).

Effects of Cigarette Smoking on the Fetus and Child, a report from the Committee on Environmental Hazards of the American Academy of Pediatrics, Pediatrics 57:411–13 (March 1976).

See Diehl H.S. , Tobacco and Your Health: The Smoking Controversy, c. 3 Suspicious and Early Medical Evidence (McGraw-Hill, Inc., New York) (1969); Cobey C. , The Resurgence and Validity of Anti–Smoking Legislation, University of California, Davis, Law Review 7:167, 175 (1974) [hereinafter cited as Resurgence and Validity of Anti-Smoking Legislation].

Smoking and Health — Report of the Advisory Committee to the Surgeon General of the Public Health Service (DHEW, Public Health Service, Washington, D.C.) (1964); Smoking and Health — A Report of the Surgeon General (DHEW, Public Health Service, Washington, D.C.) (1979).

See Schmeltz I. Hoffman D. Wynder E.L. , The Influence of Tobacco Smoke on Indoor Atmosphere, Preventive Medicine 4:66–82 (1975); Noonan G. , Passive Smoking in Enclosed Public Places, Medical Journal of Australia 2:68–70 (July 1976). It is interesting to note that a heavily smoke-laden room will exceed OSHA air standards.

See The Health Consequences of Smoking: A Report of the Surgeon General (DHEW, Public Health Service, Washington, D.C.) (1972); Aronow W.S. , Carbon Monoxide and Cardiovascular Disease, at 321–28, Smoking and Health, Proceedings of the Third World Conference on Smoking and Health (1975).

See, e.g., Aronow W.S. , Effect of Passive Smoking on Angina Pectoris, New England Journal of Medicine 299:21–24 (1978) (heart rates as well as systolic and diastolic blood pressure increased in nonsmoking patients with angina pectoris after involuntary exposure to tobacco smoke).

The Smoking Digest (DHEW, Public Health Service, Bethesda, MD) (1977) cites 1965 National Center for Health Statistics estimates of a loss of 77 million workdays annually in the United States due to smoking related illnesses. The American Cancer Society's National Commission on Smoking and Public Policy estimated that 81 million lost workdays and 146 million excess bed disability days were attributable to smoking-related illness in 1977. Both the federal Government and the American Medical Association estimate that ten percent of the entire United States health care bill can be attributed to the medical and hospital costs associated with cigarette caused illnesses.

Luce B.R. Schweitzer S.O. , Smoking and Alcohol Abuse: A Comparison of Their Economic Consequences, New England Journal of Medicine 298:569–71 (March 1978).

See, e.g., Austin v. Tennessee, 179 U.S. 343 (1900) (it is within province of legislature to restrict or prohibit the sale of cigarettes for the protection of the public health).

Garner D.W. , Cigarettes and Welfare Reform, Emory Law Journal 26:269, 297 (1977) [hereinafter cited as Cigarettes and Welfare Reform]. See generally, Calabresi G. , the Costs of Accidents: A Legal and Economic Analysis, at 26–31, (Yale University Press, New Haven) (1970).

State Legislation on Smoking and Health: 1975, 1976, 1977 (National Clearinghouse for Smoking and Health) (1978).

For a discussion of the federal regulatory efforts to restrict cigarette advertising, see footnotes 36 and 37 and accompanying text. See generally, Warner K.E. , The Effects of the Anti-Smoking Campaign on Cigarette Consumption, American Journal of Public Health 67:645–50 (1977).

See Commonwealth v. Thompson, 53 Mass. (12 Met.) 23 (1847) (a Boston ordinance which prohibited smoking on public streets because of the extreme fire danger presented by the wooden structures of the day was upheld as a valid exercise of the police power).

Austin v. Tennessee, 179 U.S. 343 (1900) (although state may not wholly interdict commerce in cigarettes, it may limit sales or impose conditions it may deem necessary or advisable to protect the health of its citizens).

See Resurgence and Validity of Anti-Smoking Legislation, note 6 supra, at 169–73.

For a history of cigarette consumption in the United States, see Tennant R.B. , the American Cigarette Industry, at 129–36 (Yale University Press, New Haven) (1950).

Reported in Chicago Sun-Times, November 27, 1977, at p. 19.

See Morbidity and Mortality Weekly Report 25:237–38 (August 1979) (nine out of ten smokers have either tried to quit or said they would do so if there were an easy way); Wynder E.L. Hoffman D. , Tobacco and Health: A Societal Challenge, New England Journal of Medicine 300:894–903 (April 1979) (at least 75 percent of those who smoke desire to quit).

See generally, Friedman K.M. , Public Policy and the Smoking-Health Controversy: A Comparative Study (Lexington Books, Lexington, MA) (1975).

See New York Times, July 27, 1977, and January 12, 1978. As recently as 1977, the U.S. House of Representatives defeated an attempt to eliminate tobacco from the “Food for Peace” program.

15 U.S.C. § 1331–39.

15 U.S.C. § 1334.

The hearings were conducted by the Legal and Monetary Affairs Subcommittee of the House Government Operations Committee and reviewed the authority of the Federal Trade Commission regarding advertising claims being made for filter cigarettes. See generally, Fritschler A.L. , Smoking and Politics: Policymaking and the Federal Bureaucracy, at 27, (Prentice-Hall, Inc., Englewood Cliffs, NJ) (1975) [hereinafter referred to as Smoking and Politics].

Smoking and Politics, note 27 supra, at 124.

Smoking and Politics, note 27 supra, at 150.

8 F.C.C. 2d 381, affirmed 9 F.C.C. 2d 921 (1967). For a background discussion, see Smoking and Politics, note 27 supra, at 49–54.

Little Cigar Act of 1973, 15 U.S.C.A. § 1332(7), § 1335.

A similar tar and nicotine price differential tax was imposed by the City of New York and was upheld in People v. Cook, 34 N.Y. 2d 100, 312 N.E.2d 452 (1974).

See Brecher E.M. , Smoking: For Most A Sentence to Nicotine Addiction, Medical World News, March 5, 1979, at 61–73; Blum R.H. , Controlling Drugs (Jossey–Bass, San Francisco, California) (1974).

21 U.S.C. § 321(g)(1)(c).

Although the Hazardous Substances Labeling Act of 1960 gave the FDA the authority to control the sale of substances which, among other things, had the capacity to produce illness through inhalation, HEW took the position that, lacking more specific Congressional intention, FDA should not use the Act as authority to regulate cigarettes. Congress itself subsequently rejected an amendment to the Act which would have explicitly extended it to include cigarettes. Smoking and Politics, note 27 supra, at 35.

Ash Newsletter, January–February 1978, at 3.

8 F.C.C. 2d 381, affirmed 9 F.C.C. 2d 921 (1967). In the 3 1/2 years prior to the decision, the American Cancer Society distributed 982 pre–recorded anti–smoking commercials. Within eight months after the decision, this number had grown to 4723. Smoking and Politics, note 27 supra, at 147.

Banzhaf v. F.C.C., 405 F.2d 1082 (D.C.C. 1968).

49 C.F.R. § 1124.21 (1975); 14 C.F.R. § 252 (1976).

15 U.S.C.A. §§ 2051–2081.

State Legislation on Smoking and Health: 1977 (National Clearinghouse for Smoking and Health) (1978).

Minn. Stat. Ann. § 144.417; the implementing regulations are in chapter 26 of the Minnesota Department of Health Rules.

See Smoking Restrictions are Proving Popular But Hard to Enforce, New York Times, November 17, 1977, p. Al; Enforcement of Ban on Smoking in Minnesota Is No Easy Matter, New York Times, September 9, 1979, p. 64; Vosburgh L.A. Vosburgh L.B. , Tobacco Smoking in Public Places, Environmental Policy and Law 3:34–36 (1977).

See The Politics of Cancer, note 2 supra, at 151–177.

See generally Cigarettes and Welfare Reform, note 14 supra, at 297–309 for an excellent discussion of civil liability for cigarette manufacturers; Wegman R.A. , Cigarettes and Health: A Legal Analysis, Cornell Law Quarterly 51:678–759 (1966); James F. , The Untoward Effects of Cigarettes and Drugs: Some Reflections on Enterprise Liability, California Law Review 54: 1550–58 (1966); White A.A. , Strict Liability of Cigarette Manufacturers and Assumption of Risk, Louisiana Law Review 29: 589–625 (1969); White A. A. , The Intentional Exploitation of Man's Known Weaknesses, Houston Law Review 9:889–927 (1972).

See Cigarettes and Welfare Reform, note 14 supra, at note 204; Comment, The Deadly Weed: Cigarettes Are in Trouble, Houston Law Review 5: 717, 735 (1968).

Shimp v. New Jersey Bell Telephone Co., 145 N.J. Super, 516, 368 A.2d 408 (1976).

Gasper v. Louisiana Stadium and Exposition District, 418 F. Supp. 716 (1976), affirmed 577 F.2d 897 (5th Cir.), cert. denied 99 S. Ct. 846 (1979).

Stadium Will Ban Smoking in Stands, Detroit Free Press, April 16, 1976.

For a short description of the activities of these organizations, see Reif, Public Information on Smoking, note 2 supra, at 1209.

Prior to March, 1978, the HEW Office on Smoking and Health was called the National Clearinghouse on Smoking and Health. Its “clearinghouse” function remains limited to bibliographical information and educational materials.