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Rose v. Brown & Williamson Tobacco Corp.9/29/2005
omitted].) Accepting defendant's position would result in precisely the type of extension the Supreme Court cautioned against. The Agriculture Adjustment Act of 1938 was clearly written to protect tobacco farmers from natural disasters and other potential market imbalances as opposed to protecting tobacco product manufacturers from injuries caused by their manufactured products.
Additionally, while Congress has continued to preempt any legislation or regulation by the states or any federal agencies which would be contrary to the requirements set forth in the Federal Cigarette Labeling and Advertising Act, nothing presented to this court or contained in that legislation indicates it was intended to have any greater impact than that which is set forth in its declaration of policy and purpose. In pertinent part, the act states:
It is the policy of Congress, and the purpose of this Act [15 USCS §§ 1331, et seq.], to establish a comprehensive Federal program to deal with cigarette labeling and advertising with respect to any relationship between smoking and health, whereby - -
(1) the public may be adequately informed about any adverse health effects of cigarette smoking by inclusion of warning notices on each package of cigarettes and in each advertisement of cigarettes; and
(2) commerce and the national economy may be (A) protected to the maximum extent consistent with this declared policy and (B) not impeded by diverse, non-uniform, and confusing cigarette labeling and advertising regulations with respect to any relationship between smoking and health.
(15 USCS § 1331.)
The policy statement set forth above contains no explicit provisions absolving cigarette manufacturers from liability for injuries caused by their products. The policy provisions of the act contain specific language defining a purpose of balancing the need for health related information with respect to a specific product in national commerce against the confusion and complexity that would be generated if individual states or various federal agencies each created their own regulatory scheme of warnings or labels for that product. As the Supreme Court indicated in the FDA case, "... 'it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.'" (FDA, 529 US at 147 [quoting Oncale v. Sundowner Offshore Services, Inc., 523 US 75, 79 ].)
Finally, at least with respect to the sole claim remaining before this court (negligent product design), the very cases cited by defendants, Insolina and Cruz-Vargas, support the conclusion that a state law tort cause of action for negligent product design survives federal preemption. In Insolina, while the court specifically made reference to the language set forth in 7 USC § 1311(a), the court allowed the plaintiffs to amend their complaint to assert a claim for negligent design of cigarettes based upon the theory that the cigarette manufacturers: "... were negligent in failing to design a cigarette product that was non-addictive and less harmful to health." (Insolina, 128 F Supp 2d at 1227.) In Cruz-Vargas, the court specifically mentioned the language of 7 USC §1311(a) and, based upon said language stated: "Plaintiffs are barred from pursuing a state-law tort claim based exclusively on the theory that Defendant Reynolds manufactured and sold cigarettes." (Cruz-Vargas, 218 F Supp 2d at 118.) However, as to plaintiffs' claim for defective product design under a negligence theory, the court did not address the subject of conflict preemption. Instead, the court granted defendants' summary judgment motion dismissing the claim stating: "Here Plaintiffs have not proffered a
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