California Supreme Court Hears Challenge to Free Tobacco Ban

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California Supreme Court Hears Challenge to Free Tobacco Ban

SAN FRANCISCO -- Six years after R.J. Reynolds Tobacco Co. was slapped with a $14.8 million fine for holding cigarette giveaways at six California public events, the company continues to fight the constitutionality of a state law prohibiting tobacco freebies, the Associated Press reported.

The maker of Camel, Winston and other brands says it has a right to give free tobacco to adult smokers despite the ban state lawmakers approved amid intense lobbying from the California Medical Association. At least 16 states and the District of Columbia regulate the distribution of free tobacco, according to the AP.

The issue will be argued Wednesday before the California Supreme Court.

According to the AP, R.J. Reynolds already has lost two court challenges to the 1991 state law, and its penalty for doling out free smokes to nearly 15,000 adults at events ranging from a San Jose beer festival to a Del Mar motorcycle event in 1999 and 2000 is now $18 million and growing with interest.

The legal debate isn't about free-market capitalism; instead, R.J. Reynolds says state laws regulating the "promotion" of cigarettes are pre-empted, or nullified, because of the 1969 congressional Federal Cigarette Labeling and Advertising Act. The act says "No requirement or prohibition based on smoking and health shall be imposed under state law with respect to the advertising or promotion of any cigarettes ..."

Among other things, the federal measure also prohibited tobacco advertising on radio and television stations.

Still, several health groups, including the CMA and the American Medical Association are urging the justices to uphold the law because "tobacco use is the nation's single most preventable cause of premature death and disease."

Business groups are weighing in on R.J. Reynolds' behalf, saying states shouldn't meddle in areas already controlled by the federal government, the AP reported.

"The operation of state regulatory regimes in areas that Congress reserved to the federal government can have significant and deleterious effects on manufacturers subject to additional and potentially inconsistent state mandates," Donald M. Falk, an attorney for the industry trade group Liability Advisory Council, told the AP.

Historically, states are free to adopt their own laws insofar as they don't conflict with federal mandates.

Congress, for example, sets fuel efficiency standards for automobiles, as well as national banking regulations. States are prohibited from entering those fields, but they often try and are rebuffed by the courts.

California law virtually bars the tobacco industry from giving out freebies on public and private property.

California's lead attorney on the case says it's a close call whether state laws prohibiting free cigarettes are pre-empted given the 1969 federal legislation, according to the AP.

"It's an open question," said Dennis Eckhart, senior assistant California attorney general, in the AP report.

Eckhart said that among California's strongest arguments is that the 1969 legislation concentrated on where tobacco advertising could take place, not whether states could bar the free distribution of tobacco.

"Congress is concerned where ads were going to be," Eckhart said in the report. "The states have a right to stop free sampling."

For its part, R.J. Reynolds says just open a dictionary to the word "promotion," and the company's right to free giveaways is clear, the AP reported.

"To be frank, a free sample is a promotion. That is the way it is used in normal speech and the way people understand it," H. Joseph Escher III, an attorney representing the company, told the AP. "The federal government could have expressly banned free promotions in the states, and they haven't."