On January 8, 2018, one of the thousands of decades-long legal battles of a former smoker’s estate against Big Tobacco finally came to an end.¹ Faye Graham died of lung cancer on November 18, 1993 and shortly thereafter her husband, Earl Graham, joined a class action lawsuit against cigarette manufacturers on his wife’s behalf, seeking compensation for her tobacco caused lung cancer and premature death. The saga of that class action suit, Engle v. R.J. Reynolds Tobacco Co., spans decades. After a jury found that tobacco companies were negligent and had concealed information and misled smokers about the dangers of their products, the class was decertified, leaving plaintiffs – including Faye Graham’s estate – the burden of seeking compensation on their own but allowing them to rely on the jury’s initial findings.

Earl Graham died in 2016, never having witnessed this final victory, an unfortunately all-too-common occurrence in tobacco litigation. The victory for Faye Graham’s estate - $825,000, an amount that has been collecting interest since a jury rendered its verdict in 2013 - is modest compared to other Engle progeny verdicts, some of which have been worth tens of millions of dollars, and a paltry sum for an industry that spends billions of dollars a year marketing its products. However, this victory is notable because the plaintiffs were able to overcome a difficult hurdle erected by the tobacco industry: preemption.

Preemption is a familiar topic for many tobacco control professionals. In the policymaking context, preemption occurs when the federal government prevents state and local regulation or a state government prevents local regulation. Preemption has long been a tool used by the tobacco industry. A former industry lobbyist once explained that, “[w]e could never win at the local level. . . . So the Tobacco Institute and tobacco companies’ first priority has always been to preempt the field, preferably to put it all on the federal level, but if they can’t do that, at least on the state level, because the health advocates can’t compete with me on a state level. They never could. On the local level, I couldn’t compete with them. And that’s why all your antismoking legislation without exception has started at the local level, all across the country.”

Because of its power, the tobacco industry has also raised preemption as a defense to personal injury litigation as it did in the lawsuit brought by Faye Graham’s family. The cigarette companies’ legal theory was that the Engle jury found that all cigarettes are defective and the industry was liable for all of the defective cigarettes sold, essentially amounting to a de facto ban on the sale of cigarettes. The cigarette makers further argued that because Congress had never banned cigarettes, only regulated them in specific ways, Congress must have intended for cigarettes to remain available for purchase. Thus, Congress’s inaction in banning the sale of cigarettes preempted a state from doing so, either by policymaking or by imposing liability on the sale of all cigarettes. A three-judge panel of the Court of Appeals for the 11th Circuit was convinced by this argument and threw out the jury’s decision in favor of Faye Graham’s estate.

Undeterred, Graham’s attorneys requested that the 11th Circuit rehear the case sitting en banc, where all ten judges that sit on the circuit hear the case, establishing a decision that can only be overturned by the U.S. Supreme Court. The Consortium and eight other public health groups filed an amicus curiae (friend of the court) brief supporting this request and highlighting the troubling, far-reaching nature of this unprecedented decision.

Ordinarily courts are very hesitant to issue a finding that a law or cause of action is preempted and only do so where it is clear that preemption was the intended or necessary outcome of a particular law. The shaky foundation of the panel’s decision in Graham was not that a specific law established preemption, but that the absence of Congressional action – not banning the sale of cigarettes altogether – was preemptive. If allowed to stand, such a ruling could have formed the basis for future attacks, not just on individual litigation, but on state and local policymaking as well. The Consortium’s coalition filed another amicus curiae brief to the 11th Circuit highlighting the need to overturn the panel’s overreaching decision. On the issue of whether Faye Graham’s estate’s claims were preempted by federal law, the 11th Circuit found in favor of Ms. Graham’s estate by a margin of seven to one.² The court’s preemption decision relies heavily on some of the information from the Consortium’s brief, citing many of the same cases and using some of the same arguments. The U.S. Supreme Court declined to review this case and so the 11th Circuit’s en banc decision stands.

This decision was a personal victory for one family, offering meager compensation for the heartbreaking and premature loss of a loved one. But it was also an important victory for the entire tobacco control movement. Preemption has been a powerful legal instrument the tobacco industry has used for decades to prevent state and local actions that benefit public health and to escape liability for its deceptive business practices. The 11th Circuit’s decision in Graham, finding no federal preemption of a state-wide ban on the sale of cigarettes, is just one step towards a tobacco-free future. Someday soon, when the tobacco industry challenges the first community to take the bold step of prohibiting the sale of tobacco products, the Graham decision will be that community’s shield and not the industry’s sword.

¹ The decision discussed here was issued on May 18, 2017 by the 11th Circuit but the defendant tobacco companies appealed to the U.S. Supreme Court which declined to review the case on January 8, 2018.
² Chief Judge Ed Carnes recused himself from the rehearing and Judge Charles Wilson dissented with respect to the ruling on the Due Process Clause, seeing no need to make a determination on the preemption argument. Only Judge Gerald Tjoflat thought that Faye Graham’s estate’s claims were preempted.

January 9, 2018

Desmond Jenson, J.D., is a Staff Attorney at the Tobacco Control Legal Consortium, a program of the Public Health Law Center.