Lindsey v. Tacoma-Pierce County Health Department: Cipollone Revisited, Billboards, State Law Tort Damages Actions, Federal Preemption and the Federal Cigarette Labeling and Advertising Act
The Article evaluates Lindsey and other recent cases dealing with local regulations restricting tobacco advertising; it also examines their respective preemption analyses, suggesting that the use of the FCLAA's preemption provision against such regulations is unwarranted. The article argues that in Lindsey, the Ninth Circuit misconstrued the Supreme Court's discussion of the preemptive scope of the FCLAA by failing to read it in the proper contex and that the FCLAA's preemption provision was not intended to prevent the particular types of regulations involved in Lindsey and these other cases. It argues that the preemption provision was only meant to preempt health-risk or health-related requirements or prohibitions with respect to the advertising or promotion of cigarettes, which these regulations do not involve. The article also revisits Cipollone, examines the different positions taken with respect to the issue of whether the FCLAA preempts state law tort claims, and concludes that the decision that the FCLAA's preemption provision does preempt certain state law tort damages claims is probably not the best result. The article contends that Congress never intended this provision to be used to "immunize" cigarette manufacturers from such claims; in addition, state law tort damages claims serve important functions. It concludes with an argument that Cipollone prevents any regulation of cigarette manufacturers' behavior and any state imposed obligations manufacturers owe to their customers, and that this result is undesirable.
Harold C. Reeder, Lindsey v. Tacoma-Pierce County Health Department: Cipollone Revisited, Billboards, State Law Tort Damages Actions, Federal Preemption and the Federal Cigarette Labeling and Advertising Act, 24 SEATTLE U. L. REV. 763 (2001).
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