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Rose v. Brown & Williamson Tobacco Corp.9/29/2005
m of Law regarding Federal Preemption, Page 18). The defendants, citing FDA v Brown & Williamson Tobacco Corporation, et al, (529 US 120, 137-39 ), contended that:
Congress ... has foreclosed the removal of tobacco products from the market ... [In addition to 7 U.S.C. § 1311 (a),] Congress has directly addressed the problem of tobacco and health through legislation on six occasions since 1965 ... .When Congress enacted these statutes, the adverse health consequences of tobacco use were well known, as were nicotine's pharmacological effects. ... Nonetheless, Congress stopped well short of ordering a ban. Instead, it has generally regulated the labeling and advertisement of tobacco products, expressly providing that it is the policy of Congress that "commerce and the national economy may be ... protected to the maximum extent consistent with" consumers "be adequately informed about any adverse health effects." 15 U.S.C. § 1331. Congress' decisions to regulate labeling and advertising and to adopt the express policy of protecting "commerce and the national economy . . . to the maximum extent" reveal its intent that tobacco products remain on the market.
(Defendants' Memorandum of Law regarding Federal Preemption, Page 20.) In further support of their position, defendants cited Insolina v Philip Morris Incorporated, et al (128 F Supp 2d 1220 [WD Wis 2000]) and Cruz-Vargas v R. J. Reynolds Tobacco Co. (218 F Supp 2d 109 [D PR 2002], affd. 348 F 3d 271 [1st Cir 2003]) as examples of cases which hold: "... that the plaintiffs could not 'pursue a claim of negligence that rests on nothing more than the continued sale and manufacture of a dangerous product without any allegation of fault in the manufacturing or selling process.'"(Defendants' Memorandum of Law regarding Federal Preemption, Page 22).
The thrust of defendants' preemption argument relied heavily upon statements in the FDA case concerning tobacco and the national economy. Those statements , in turn relied upon portions of the Agriculture Adjustment Act of 1938 (contained in 7 USC §1311). 7 U.S.C § 1311(a) stated, in pertinent part, as follows: The marketing of tobacco constitutes one of the greatest basis industries of the United States with ramifying activities which directly affect interstate and foreign commerce at every point, and stable conditions therein are necessary to the general welfare. Tobacco produced for market is sold on a Nation-wide market and, with its products, moves almost wholly in interstate and foreign commerce from the producer to the ultimate consumer. The farmers producing such commodity are subject in their operations to uncontrollable natural causes, are widely scattered throughout the Nation, in many cases such farmers carry on their farming operations on borrowed money or leased lands, and are not so situated as to be able to organize effectively, as can labor and industry through unions and corporations enjoying Government protection and sanction. For these reasons among others, the farmers are unable without Federal assistance to control effectively the orderly marketing of such commodity with the result that abnormally excessive supplies thereof are produced and dumped indiscriminately on the Nation-wide market.
Thus, as it related to tobacco products, the specific purpose of the Agriculture Adjustment Act of 1938 was to deal with the vicissitudes of agriculture and to prevent "abnormally excessive supplies" of tobacco from being "dumped indiscriminately on the Nation-wide market." Therefore, it is extremely important for this court to carefully consider the determination actually reached in the FDA case and the context of the statements made by the Supreme Court in order to avoid
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