The Federal District Court for the District of Maryland recently released a long-awaited opinion on the City of Baltimore’s tobacco-product-waste lawsuit against Phillip Morris International and other tobacco defendants. The federal District Court granted the City’s request to return (or “remand”) the case back to state court, where it started. The result is good news for public health and environmental advocates, although there is still a long road ahead for the City of Baltimore’s litigation.
Background
In November 2022, the City of Baltimore filed a lawsuit in Maryland state court in an attempt to hold Philip Morris International and other major tobacco manufacturers accountable for cigarette litter. The lawsuit argues that:
- almost all cigarette butts are made of a non-biodegradable plastic called cellulose acetate and that cigarette butts are the most littered object on the planet, costing cities like Baltimore millions of dollars in cleanup efforts;
- many people improperly discard used cigarettes based on the widely held but mistaken belief that the butts are made of biodegradable cotton; and
- tobacco companies know all of this but persist in making and selling these non-biodegradable products because it is cheaper and more marketable to do so than to pursue more responsible and sustainable alternatives.
The City claims the tobacco defendants’ behavior violates local and state waste-disposal laws and that the defendants should be held accountable for producing defective products and for failing to warn people about those defects. The City’s lawsuit seeks compensation for the millions of dollars it has spent cleaning up the tobacco defendants’ products, to criminally sanction and fine the defendant tobacco companies, and to order the tobacco defendants to clean up their cigarette litter.
In February 2023, the tobacco defendants removed the lawsuit to federal court, which is to say they filed a motion that took the case away from the state court and moved it to the federal court system instead. The tobacco defendants argued that, to resolve the City’s claims, a court would have to address important questions of federal law—including whether the City’s claims are preempted by federal statute—making federal court an appropriate place to hear the case. The City then moved to remand the case back to state court where the litigation started. The City argued that federal courts can only hear cases if there are federal questions and that, because all the claims were brought under state law and because none of them necessarily raise or implicate any federal statutes, federal courts lack the authority to hear the case.
The Court’s Order
Almost a year after the case was removed to federal court, the federal District Court granted the City of Baltimore’s motion and ruled that the litigation needs to go back to state court where it began. This is an important win for the City for two reasons.
First, it means that the case can proceed in state court where the City filed the lawsuit in the first place. To the extent the City feels it has a strategic advantage to being in state court rather than federal court, that is a victory in itself.
Second, and more crucially, it means the City dodged a major blow to its litigation. The tobacco defendants had argued that the case raises federal questions because all of the state law claims—claims that, according to them, concern the design, labeling, and marketing of cigarettes—implicate and are preempted by federal statutes like the Federal Cigarette Labeling and Advertising Act (“FCLAA”), the Family Smoking Prevention and Tobacco Control Act of 2009 (“TCA”), and the National Environmental Policy Act (“NEPA”). Thus, to resolve the City’s state law claims, a court would need to first resolve the question of whether those claims are preempted by those federal statutes.
In a nutshell, the procedural question of where the litigation can be heard mirrored an important substantive question of whether it would be successful in the end. If the federal district court had agreed with the tobacco defendants’ argument, it would have been a signal that it also agreed (or was inclined to agree) that the City’s claims were preempted by federal law, and thus were not viable. By rejecting the tobacco defendant’s arguments and remanding the case, however, the Court affirmed that the City’s state law claims are not necessarily preempted by the FCLAA, the TCA, or NEPA.
Next Steps
There is still a long way to go in this litigation, but the federal District Court’s ruling means that the City of Baltimore’s case may proceed in state court and will not, as the tobacco defendants had hoped, come to an early end in federal court. There are many more hurdles for the City to clear, but this is a significant development and puts the City that much closer to presenting its case to a jury.
Just as importantly, state or local authorities in other jurisdictions who are considering similar tobacco-product-waste lawsuits should feel encouraged by this ruling. The federal District Court rejected the same sort of preemption arguments that tobacco companies have been raising in litigation around the country, most notably in the industry’s increasingly quixotic campaign to challenge state and local flavor bans. This suggests that the industry’s preemption playbook is no more viable here than in the flavor-ban context. If the next wave of successful tobacco litigation comes in the form of environmental challenges over tobacco product waste, it will have started in Baltimore.
Tom Pryor, Staff Attorney
January 25, 2024