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CORK Bibliography: Court Cases

62 citations. January 2006 to present

Prepared: December 2009

Alderman J; Daynard RA. Applying lessons from tobacco litigation to obesity lawsuits. (review). American Journal of Preventive Medicine 30(1): 82-88, 2006. (30 refs.)

This discussion examines the use of litigation as a strategy to protect the public health. The history of tobacco litigation provides a model to evaluate potential litigation strategies against other industries that pose a threat to public health, particularly the food industry. This paper demonstrates that although legislation would be a preferable solution, lessons from the tobacco wars suggest that effective national legislation is unlikely at the present time. Based on the differences and similarities between the tobacco and food industries, it predicts the effectiveness of particular kinds of obesity litigation and the food industry's likely response. The tobacco industry has vigorously fought individual injury lawsuits and has had remarkable success in resisting such cases. The food industry is likely to successfully employ a similar "scorched earth" litigation strategy in individual injury cases. However, the tobacco industry did agree to the Master Settlement Agreement in the lawsuits brought by the state attorneys general because they were a unique kind of litigation with a finite number of plaintiffs. Likewise, state lawsuits under consumer protection acts may be a distinct type of litigation that permits cases to focus on deceptive advertisements while avoiding complicated causation issues. Such lawsuits have the potential to be a useful tool to fight obesity and enlist the efforts of the food industry in resisting the epidemic. Understanding the lessons of tobacco can save public health advocates much time and many resources and thus allow tobacco litigation to benefit public health in new ways.

Alpert HR; Koh HK; Connolly GN. After the Master Settlement Agreement: Targeting and exposure of youth to magazine tobacco advertising. Health Affairs 27(6): W503-W512, 2008. (36 refs.)

Targeting and exposure of youth to magazine advertising of tobacco products is associated with increased smoking initiation. National magazine advertising and youth exposure declined in the period following the Master Settlement Agreement (MSA). However, tobacco companies continued targeting youth with brands that were popular among them through magazine advertising and placement of ads in magazines with high youth readership. Existing restrictions, followed by enforcement through litigation, have achieved a marked reduction in overall magazine advertising but may be less adequate compared with pending federal legislation to fully protect youth from the marketing of tobacco products designed to appeal to them.

Appleton TO. The line between liberty and union: Exercising personal jurisdiction over officials from other states. Columbia Law Review 107(8): 1944-2003, 2007. (51 refs.)

This Note examines whether personal jurisdiction analysis should apply differently in cases against officials from other states (or "foreign state officials"). The Supreme Court faced this question nearly thirty years ago in Leroy v. Great Western United Corp., but it avoided the issue by disposing of the case on improper venue grounds. Since that time, courts adjudicating suits against foreign state officials under federal law have shown marked disagreement over the roles that federalism and state sovereignty might play in determining whether personal jurisdiction properly lies. Most recently, in Grand River Enterprises Six Nations, Ltd. v. Pryor, the Second Circuit held that personal jurisdiction arose in New York over attorneys general from thirty-one states in a case concerning the tobacco Master Settlement Agreement (MSA), negotiated in New York City to settle state claims against the country's major tobacco companies. In reaching its conclusion, the court noted that, for jurisdictional purposes, the MSA was not unlike "an ordinary commercial contract. " This Note reaches the opposite conclusion. After reviewing the relevant doctrinal principles and case law, this Note concludes that there is room to address federalism concerns as part of the personal jurisdiction inquiry in federal cases. Specifically, several reasonableness factors highlighted in Burger King Corp. v. Rudzewicz, in particular "the shared interest of the several States in furthering fundamental substantive social policies, " invite consideration of federalism principles. By uniformly assessing state sovereignty concerns under the reasonableness prong in federal cases, the courts will bring stability to an area of law in need of a firmer foundation.

Ashdown GG. The blueing of America: The bridge between the war on drugs and the war on terrorism. University of Pittsburgh Law Review 67(Summer): 753-802, 2006. (342 legal refs.)

Summary. This article examines a trend toward permissive police investigatory practices and the concomitant loss in privacy rights this entails. The trend which is currently justified as important in "the war on terror" is seen as having its origin in the "war on drugs." Historically, this phenomenon has its origins in the proliferation of drug usage in the country: first marijuana, hallucinogenic drugs, and amphetamines during the counterculture years of the late '60s and '70s, and later powder and then crack cocaine. ... The definition of probable cause was diluted, and the standards on what constituted a law enforcement search or seizure were drawn narrowly. ... This "no search" casualty to privacy in the War on Drugs has tremendous potential for application to video surveillance and new surveillance devices such as weapons detectors, and facial and vehicle character recognition technology. ... Justice Stevens's majority opinion not only followed established precedent that a dog sniff was not a search for Fourth Amendment purposes, but also rejected the Illinois Supreme Court's conclusion that the use of the dog converted a lawful traffic stop into a different drug investigation not supported by reasonable suspicion. ... The major difference between the two provisions is that Title III has extensive probable cause, particularity, minimization, and termination requirements regarding the commission of federal domestic crime, whereas FISA requires only a showing of probable cause that the target is a foreign power or agent of a foreign power and, originally, certification that "the purpose" of the surveillance was the gathering of foreign intelligence information.

Balbach ED; Smith EA; Malone RE. How the health belief model helps the tobacco industry: Individuals, choice, and "information". Tobacco Control 15(Supplement 4): 37-43, 2006. (33 refs.)

Objective: To analyse trial and deposition testimony of tobacco industry executives to determine how they use the concepts of "information" and "choice" and consider how these concepts are related to theoretical models of health behaviour change. Methods: We coded and analysed transcripts of trial and deposition testimony of 14 high-level executives representing six companies plus the Tobacco Institute. We conducted an interpretive analysis of industry executives' characterisation of the industry's role as information provider and the agency of tobacco consumers in making "choices". Results: Tobacco industry executives deployed the concept of "information" as a mechanism that shifted to consumers full moral responsibility for the harms caused by tobacco products. The industry's role was characterised as that of impartial supplier of value-free "information", without regard to its quality, accuracy and truthfulness. Tobacco industry legal defences rely on assumptions congruent with and supported by individual rational choice theories, particularly those that emphasise individual, autonomous decision-makers. Conclusions: Tobacco control advocates and health educators must challenge the industry's preferred framing, pointing out that "information" is not value-free. Multi-level, multi-sectoral interventions are critical to tobacco use prevention. Over-reliance on individual and interpersonal rational choice models may have the effect of validating the industry's model of smoking and cessation behaviour, absolving it of responsibility and rendering invisible the "choices" the industry has made and continues to make in promoting the most deadly consumer product ever made.

Berman ML. Current issues in tobacco regulation, litigation, and policy. Symposium: Tobacco Litigation without the smoke? Cigarette companies in the smokeless tobacco industry. Journal of Health Care Law & Policy 11: 7-56, 2008. (27 refs.)

SUMMARY: ... The MSA broadly prohibits directly or indirectly targeting underage youth in the "advertising, promotion or marketing of Tobacco Products" (and, as discussed above, the definition of "Tobacco Products" includes smokeless tobacco). ... In the case of smokeless tobacco, narrowly-focused litigation may serve to educate the public about the harms of smokeless tobacco and the fact that the tobacco industry has made - and continues to make - deliberate choices that increase the toxicity of smokeless tobacco products. ... Reynolds and Philip Morris have not made any explicit harm reduction claims on behalf of their smokeless tobacco products, USST has argued to the U.S. ... Department of Health and Human Services that "any comprehensive evidence-based tobacco control program should include a tobacco harm reduction strategy providing that cigarette smokers who do not quit and do not use medical nicotine products should be encouraged to switch completely to smokeless tobacco ... ." Of course, tobacco companies will continue to argue in court, as they have in the past, that smoking is an "adult choice" (despite the fact that most smokers became addicted to cigarettes as minors) and that the public is well-informed of the health risks of smoking (despite the companies' decades-long conspiracy to mislead the public about the dangers of smoking).

Bogen K; Biener L; Nyman A. Consequences of marketing exceptions in the Master Settlement Agreement: Exposure of youth to adult only tobacco promotions. Nicotine & Tobacco Research 8(3): 467-471, 2006. (17 refs.)

The Master Settlement Agreement between a consortium of tobacco companies and 46 states contains many restrictions on tobacco sales and advertising that were designed to reduce youth exposure to tobacco promotions. Most of the restrictions include an exception for "adult-only'' facilities. The present study investigated the extent to which youth are being exposed to marketing that is presumably limited to adults. Using data from a statewide random-digit-dialed survey of 3,863 Massachusetts youth aged 12-17 years, we found that about half of all youth in this age group reported seeing cigarettes advertised at events, concerts, bars, or clubs in the past 12 months, and that about 5% of youth in this age group reported being present at a venue where free samples of cigarettes were being distributed. Youth exposed to this marketing were those most at risk for progression to established smoking. To our knowledge, this is the first study to estimate youth exposure to advertisements designed for adult-only venues. In light of the large body of evidence that exposure to tobacco advertising and promotion increases tobacco use among youth, our findings demonstrate the need to close the "adult-only'' loophole.

Bullis RK. The "Vine of the Soul" vs. the controlled substances act: Implications of the hoasca case. Journal of Psychoactive Drugs 40(2): 193-199, 2008. (3 refs.)

In 2006, the Supreme Court paved the way for the sacramental use of a hallucinogen, hoasca, to be imported, distributed and ingested by a religious group. This case has broad implications for religious freedom for using sacramental psychotropics and how such cases might be decided in the future. This article outlines the arguments used both by the church and by the government. It lists the facts of the cases, explains and analyzes the decision, evaluates the likelihood of expansions of religion-based exceptions for entheogen use in light of the Supreme Court's decision and offers a profile for those groups most likely to receive such an exemption.

Carroll A; McSherry B; Wood D; Yannoulidis S. Drug-associated psychoses and criminal responsibility. Behavioral Sciences and the Law 26(5): 633-653, 2008. (80 refs.)

At present, the law draws a distinction when assigning criminal responsibility to those who commit offences while experiencing psychotic symptoms: if the symptoms are believed to arise because of ingesting drugs (an external cause), the offender is generally convicted of the offence; if the symptoms arise from a mental illness (an internal cause), the offender may be afforded a defence of insanity. In practice, drawing such a distinction can be problematic. There are difficulties for example in determining criminal responsibility when the use of drugs is followed by the emergence of a psychotic illness process that then continues to have an independent existence even in the absence of the ongoing substance use. This article analyses legal, policy, and expert witness perspectives relating to liberal, conservative, and intermediate approaches to this problematic area of jurisprudence.

Cummings KM; Brown A; Douglas CE. Consumer acceptable risk: How cigarette companies have responded to accusations that their products are defective. Tobacco Control 15(Supplement 4): 84-89, 2006. (19 refs.)

Objective: To describe arguments used by cigarette companies to defend themselves against charges that their cigarettes were defective and that they could and should have done more to make cigarettes less hazardous. Methods: The data for this paper come from the opening statements made by defendants in four court cases: two class action lawsuits (Engle 1999, and Blankenship 2001) and two individual cases (Boeken 2001, and Schwarz 2002). The transcripts of opening statements were reviewed and statements about product defect claims, product testing, and safe cigarette research were excerpted and coded. Results: Responses by cigarette companies to charges that their products were defective has been presented consistently across different cases and by different companies. Essentially the arguments made by cigarette companies boil down to three claims: (1) smoking is risky, but nothing the companies have done has made cigarettes more dangerous than might otherwise be the case; (2) nothing the companies have done or said has kept someone from stopping smoking; and (3) the companies have spent lots of money to make the safest cigarette acceptable to the smoker. Conclusions: Cigarette companies have argued that their products are inherently dangerous but not defective, and that they have worked hard to make their products safer by lowering the tar and nicotine content of cigarettes as recommended by members of the public health community. As a counter argument, plaintiff attorneys should focus on how cigarette design changes have actually made smoking more acceptable to smokers, thereby discouraging smoking cessation.

Davis RM; Douglas CE; Beasley JK. The Tobacco Deposition and Trial Testimony Archive (DATTA) project: Origins, aims, and methods. Tobacco Control 15(Supplement 4): 4-8, 2006. (7 refs.)

Research on previously secret tobacco industry documents has grown substantially during the past decade, since these documents first became available as the result of private and governmental litigation and investigations by the US Congress and the US Food and Drug Administration. Complementary research on tobacco litigation testimony is now being conducted through the Tobacco Deposition and Trial Testimony Archive (DATTA) project. We obtained transcripts of depositions and trial testimony, deposition and trial exhibits, expert reports, and other litigation documents from law firms, court reporter firms, individual lawyers and witnesses, tobacco company websites, and other sources. As of 3 March 2006, the publicly available collection of DATTA (http://tobaccodocuments.org/datta) contained 4850 transcripts of depositions and trial testimony, including a total of about 820 000 transcript pages. Transcripts covered testimony from 1957 to 2005 (85% were for testimony from 1990 to 2005) given by more than 1500 witnesses in a total of 232 lawsuits. Twelve research teams were established to study the transcripts, with each team covering a particular topic (for example, the health consequences of tobacco use, addiction and pharmacology, tobacco advertising and promotion, tobacco-product design and manufacture, economic impact of tobacco use, youth initiation of tobacco use, and public understanding of the risks of tobacco use and exposure to second-hand smoke). The teams used qualitative research methods to analyse the documents, and their initial findings are published throughout this journal supplement.

Douglas CE; Davis RM; Beasley JK. Epidemiology of the third wave of tobacco litigation in the United States, 1994-2005. Tobacco Control 15(Supplement 4): 9-16, 2006. (24 refs.)

Objective: To describe the epidemiology of litigation against the tobacco industry in the United States during the years 1994-2005 (described as the "third wave" of tobacco litigation). "Epidemiology" refers to the study of the distribution and determinants of disease in populations. We apply the term "epidemiology" to the litigation context for purposes of characterising qualitatively and, to the extent possible, quantitatively the variety of cases litigated against tobacco manufacturers and allied tobacco interests during the third wave and their impact on the tobacco industry. Methods: The data for this paper come from legal cases identified in the Tobacco Deposition and Trial Testimony Archive (DATTA) collection (http://tobaccodocuments.org/datta), transcripts of testimony and related documents found in DATTA, government-mandated reports filed by tobacco manufacturers with the US Securities and Exchange Commission, investment company reports, reports and analyses published by the news media, a variety of informational documents produced by the Tobacco Control Resource Center at the Northeastern University School of Law, and legal settlement documents provided by the National Association of Attorneys General. Results: The US tobacco industry faced a far greater number of lawsuits, and a greater variety of types of lawsuit, between 1994 and 2005 than it had in previous years. Plaintiffs won 31 (41%) of the 75 cases that were tried to verdict during the years 1995-2005. Seven plaintiffs have been paid awards totalling US$ 115 million, including interest, following the exhaustion of appeals. Based on an evaluation of litigation brought against US industry leader Philip Morris, the total number of cases pending peaked in 2000, dropping off modestly since then. For example, 36 class actions were pending in 2000, while 33 were pending in 2005. In the same time period, individual actions fell from a total of 3385 to 2863. While the playing field has been levelled to some degree in the tobacco litigation arena with respect to the resources brought to bear by plaintiffs and defendants, tobacco industry defendants continue to employ far greater financial and human resources than their adversaries. Conclusions: The third wave of tobacco litigation has represented a sea change in efforts to hold the tobacco industry in the United States accountable in American courtrooms. While tobacco manufacturers continue to do their utmost to make these cases difficult to pursue, many of the cases that have gone to trial have met with success in recent years, which suggests that plaintiffs' lawyers are now better equipped to persuade juries of the defendants' culpability.

Ehrlich JB. Breaking the law by giving birth: The war on drugs, the war on reproductive rights, and the war on women. New York University Review of Law & Social Change 32: 381-420, 2008. (310 legal refs.)

Summary... Prosecuting women who become mothers while simultaneously experiencing a drug addiction or engaging in drug use is not necessary to further the government's interest in promoting healthy fetuses and children. ... But, as this article will show, prosecuting as child abusers or even murderers the thousands of American women who carry pregnancies to term despite their drug addictions not only fails to further the states' goal of protecting fetal health, but also violates the constitutional rights of pregnant women. ... This article also argues that either intermediate or strict scrutiny - not the rational basis scrutiny the Supreme Court has often applied to distinctions based on pregnancy outside the employment context - is the proper lens through which to measure the equal protection violations at issue in the prosecutions of pregnant women for drug use. ... Finally, the claim that these prosecutions protect fetal health and encourage healthy births is betrayed by the fact that such prosecutions incentivize abortion by pressuring women to face a sort of Sophie's choice that weighs an unwanted abortion against a severe prison sentence and the relegation of a child to foster care. ... Geduldig, the Court indicated in Satty, should only apply when a state's conferral of benefits is at issue; when alleged pregnancy discrimination is based on a burden borne by only one sex, Geduldig does not apply and pregnancy discrimination may be sex discrimination. ... Applying Intermediate Scrutiny Since it is established that these prosecutions are gender discriminatory, intermediate scrutiny as interpreted under VMI - the standard applied to sex-discrimination claims - should apply. ... Women have been prosecuted due to their use of a range of drugs, but most used crack cocaine, which is often "associated with inner-city Blacks."

Feix J; Wolber G. Intoxication and settled insanity: A finding of not guilty by reason of insanity. Journal of the American Academy of Psychiatry and the Law 35(2): 172-182, 2007. (27 refs.)

This article presents a case of first-degree murder for which the defendant was acquitted as not guilty by reason of insanity, based on a defense involving the concept of "settled insanity." The literature on settled insanity is reviewed and discussed in the context of voluntary and involuntary intoxication. Statute and case law from those jurisdictions in which settled insanity is specifically allowed as an acceptable threshold condition for the insanity defense define the concept as a permanent condition resulting from substance abuse, rather than the effects of intoxication, no matter how severe. Also discussed are potential criteria for this defense, including evidence that psychotic symptoms thought to be responsible for the crime were, in some manner, separate and apart from symptoms caused solely by voluntary acute intoxication. Other factors that may assist evaluators in differentiating settled insanity from the effects of acute intoxication are presented. It is recommended that evaluators attempt to determine the timing of the onset of psychotic symptoms in relation to substance abuse, the persistence of such symptoms beyond detoxification, and whether ongoing psychiatric treatment is necessary to ameliorate the symptoms beyond intoxication. In the case described, psychotic symptoms persisted long after acute intoxication and beyond the time when drugs or alcohol were detected in the accused's body, requiring clinical intervention for psychosis. Also, before the crime, the defendant had exhibited significant psychological difficulty. The evaluating clinician must still determine, even when a threshold condition is considered to be present, whether statutory criteria for the insanity defense (for the jurisdiction in which the crime allegedly took place) are met.

Fentiman LC. The new "fetal protection": The wrong answer to the crisis of inadequate health care for women and children. (review). Denver University Law Review 84(2): 537-599, 2006. (244 refs.)

In 1999, Regina McKnight, a homeless, mentally retarded woman who was pregnant and addicted to cocaine, was charged with murder when her child was stillborn. The South Carolina Supreme Court affirmed her murder conviction and upheld the twenty-year sentence imposed. In 2002, a severely mentally disabled woman became pregnant after being raped by the owner of the group home where she lived. The wife of a Florida prosecutor sought to be appointed "guardian of the fetus" in order to prevent the woman from taking prescription drugs necessary to maintain her physical health and mental stability and to prevent the woman from having an abortion. Ultimately, the Florida courts rejected these efforts. In 2004, Melissa Rowland, a pregnant woman with a long history of mental illness, sought assistance at a hospital because she noticed a decrease in fetal movements. Doctors recommended a Caesarean delivery, but Rowland declined, and the hospital offered no other help. When one of the twins she was carrying was stillborn, Rowland was charged with murder, with prosecutors asserting that she had acted with depraved indifference to the value of human life. In roughly two-thirds of the states, women who write advance directives to guide their medical care should they become incompetent may have their directives rendered unenforceable if they become pregnant.

Flores ML; Barnoya J; Mejia R; Alderete E; Perez-Stable EJ. Litigation in Argentina: Challenging the tobacco industry. Tobacco Control 15(2): 90-96, 2006. (53 refs.)

Objective: To evaluate the processes and outcomes of tobacco litigation in Argentina and to analyse the strategies of the tobacco industry to oppose litigation using tobacco industry documents. Methods: A systematic search of tobacco industry documents on the internet dating from 1978 to 2002. Law library searches using Argentinean official and unofficial reports systems were combined with computerised online searches. Results: There have been at least 15 failed litigation cases in Argentina and the tobacco industry presented a concerted defence in every claim regardless of cost. We categorised 11 cases as product liability and nicotine addiction, two as health care reimbursement, and two as criminal law and secondhand smoke. Industry strategies included hiring legal consultants from prestigious international and Argentinean law firms and developing litigation prevention programmes. Industry monitored legal academic meetings, controlled the development of new product liability legislation, obtained favourable opinions from experts, and closely observed the development of litigation in Argentina. Conclusion: The strategies used by the industry have been successful in preventing recovery for tobacco injuries through litigation. Argentinean health advocates and lawyers need to be aware of the roles and strategies of the tobacco industry in order to develop effective litigation in Argentina.

Frances A; Sreenivasan S; Weinberger LE. Defining mental disorder when it really counts: DSM-IV-TR and SVP/SDP Statutes. (review). Journal of the American Academy of Psychiatry and the Law 36(3): 375-384, 2008. (12 refs.)

Civil commitment under the sexually violent predator (SVP) statutes requires the presence of a statutorily defined diagnosed mental disorder linked to sexual offending. As a consequence of broad statutory definitions and ambiguously written court decisions, a bright line separating an SVP mental disorder from ordinary criminal behavior is difficult to draw. Some forensic evaluators reject whole categories of DSM-IV-TR (Diagnostic and Statistical Manual of Mental Disorders: Text Revision) diagnoses as qualifying disorders (e.g., personality and substance abuse disorders), while others debate whether recurrent rape constitutes a paraphilic disorder. We argue that the ramifications of the SVP process, in representing both the balancing of public safety and the protection of an individual's right to liberty, demand that decisions about what is a legally defined mental disorder not be made in an arbitrary and idiosyncratic manner. Greater clarity and standardization must come from both sides: the legalists who interpret the law and the clinicians who apply and work under it.

Francis JA; Shea AK; Samet JM. Challenging the epidemiologic evidence on passive smoking: Tactics of tobacco industry expert witnesses. Tobacco Control 15(Supplement 4): 68-76, 2006. (80 refs.)

Objective: To analyse the statements given by tobacco industry defence witnesses during trial testimonies and depositions in second-hand smoke cases and in parallel, to review criticisms of epidemiology in industry-funded publications in order to identify strategies for discrediting epidemiologic evidence on passive smoking health effects. Methods: A collection of depositions and trial testimony transcripts from tobacco industry-related lawsuits filed in the United States during the 1990s, was compiled and indexed by the Tobacco Deposition and Trial Testimony Archive (DATTA). Statements in DATTA made by expert witnesses representing the tobacco industry relating to the health effects of passive smoking were identified and reviewed. Industry-supported publications within the peer-reviewed literature were also examined for statements on exposure misclassification, meta-analysis, and confounding. Results: The witnesses challenged causation of adverse health effects of passive smoking by citing limitations of epidemiologic research, raising methodological and statistical issues, and disputing biological plausibility. Though not often cited directly by the witnesses, the defence tactics mirrored the strategies used in industry-funded reports in the peer-reviewed literature. Conclusion: The tobacco industry attempted to redirect the focus and dialogue related to the epidemiologic evidence on passive smoking. This approach, used by industry experts in trial testimony and depositions, placed bias as a certain alternative to causation of diseases related to passive smoking and proposed an unachievable standard for establishing the mechanism of disease.

Friedman LC. Tobacco industry use of judicial seminars to influence rulings in products liability litigation. Tobacco Control 15(2): 120-124, 2006. (28 refs.)

Objectives: This paper examines the tobacco industry's efforts to influence litigation by sponsoring judicial seminars. Methods: Thousands of internal tobacco documents were examined, including memos, reports, presentations, and newsletters. Connections to outside organisations were corroborated by examining tobacco industry financial records, budgets, and letters pledging funds. Facts about outside organisations were triangulated through examining their websites and publicly-filed financial records, and verifying facts through their representatives' statements in newspaper and law review articles. Results: There are direct financial ties between the tobacco industry and groups that organise judicial seminars in an effort to influence jurisprudence, and judges who attend these seminars may be breaching judicial ethics either by not inquiring about the source of funding or by ignoring funding by potential litigants. Conclusions: The tobacco industry's attempts to clandestinely influence judges' decisions in cases to which they are a party endangers the integrity of the judiciary.

Friedman L; Daynard R. Scottish court dismisses a historic smoker's suit. Tobacco Control 16(5): article e4, 2007. (8 refs.)

The decision in a Scottish smoker's case, McTear v. Imperial Tobacco Limited, that there was no scientific proof of causation between the plaintiff's smoking and his death from lung cancer, accepted all of the traditional arguments that the tobacco industry has made throughout the history of tobacco litigation, including that epidemiology is not an adequate branch of science to draw a conclusion of causation, that the tobacco industry has no knowledge that its products are dangerous to consumers, and that, despite this lack of knowledge, the plaintiff had sufficient information to make an informed decision about the dangers of smoking. This case relied on outmoded methods of reasoning and placed too great a faith in the tobacco industry's timeworn argument that "everybody knew, nobody knows". Further, the judge found it prejudicial that the plaintiff's expert witnesses were not paid for their services because she was indigent, believing that the lack of payment placed in doubt their credibility and claiming that the paid tobacco expert witnesses had more motive to testify independently because they had been paid, a perverse and novel line of reasoning. The McTear case contrasts unfavourably with the recent decision in United States v. Philip Morris, a United States decision that found the tobacco industry defendants to be racketeers, based both on the weight of a huge amount of internal tobacco industry documents showing that the tobacco industry knew their products were addictive and were made that way purposely to increase sales, and on the testimony of expert witnesses who, like those who testified in McTear, have made the advancement of the public health their life's work and are not "hired guns". The McTear case's reasoning seems outdated and reminiscent of early litigation in the United States. Hopefully, it will not take courts outside of the United States 40 more years to acknowledge the current scientific knowledge about smoking and health.

Garton AJ. Casenote: Constitutional Law - Commerce Clause - Regulation of intrastate cultivation of state-authorized medical marijuana is within Congress's commercee power. Cumberland Law Review 36: 179-192, 2006. (109 legal refs.)

Summary: Gonzales v. Raich recently addressed the extent of authority the federal government possesses to regulate intrastate cultivation of medical marijuana. In Raich, residents suffering from serious medical conditions used medical marijuana in accordance with California's Compassionate Use Act and thereafter claimed that the federal government violated the Commerce Clause when Drug Enforcement Administration (DEA) agents seized and destroyed a resident's personal cannabis crops. ... In the hope of resolving ensuing federal authority disputes, the Court considered whether the AAA's regulation of production and consumption of wheat exceeded Congress's commerce power. Although Filburn's local wheat consumption "may not be regarded as commerce," the Court held that "it may still . . . be reached by Congress if it exerts a substantial economic effect on interstate commerce. ... The Court's analysis revealed its stance that Filburn's consumption of homegrown wheat reduced his need to purchase wheat in the open market and therefore indirectly "competed with wheat in commerce. ... " Thus, the Morrison holding reiterated the finding in Lopez that the regulation of purely intrastate violence that does not directly affect the "instrumentalities, channels, or goods involved in interstate commerce" is, and should remain, solely within the province of the individual states. In anticipation of future challenges to this ruling by citizens fearing excessive federal authority, the Court in Raich acknowledged alternative avenues through which residents in need of medical marijuana may obtain relief. Most importantly, the Court emphasized the ultimate power of the democratic process through which the voting public may petition Congress to authorize the reclassification of marijuana in the CSA's schedule of controlled substances. 108 Thus, even in the face of America's ever-changing interpretation of federal versus states' rights, the Court maintains a steadfast conviction that the "voices of voters" will continue to "be heard in the halls of Congress."

Givelber D; Strickler L. Junking good science: Undoing Daubert v Merrill Dow through cross-examination and argument. American Journal of Public Health 96(1): 33-37, 2006. (6 refs.)

For more than 40 years, the tobacco industry prevailed in lawsuits brought by injured smokers, despite overwhelming epidemiological evidence that smoking caused lung cancer. Tobacco lawyers were able to create doubt about causation. They sought to persuade jurors that "everybody knew" smoking was harmful but "nobody knows" what causes cancer by recreating in court the scientific debate resolved by the 1964 Surgeon General's Report. The particularistic structure of jury trials combined with the law's mechanistic view of causation enables a defendant to contest virtually any claim concerning disease causation. Despite judicial efforts to eliminate "junk science" from lawsuits, a well-financed defendant may succeed in persuading jurors of the epidemiological equivalent of the proposition that the earth is flat.

Goldberg ME; Davis RM; O'Keefe AM. The role of tobacco advertising and promotion: Themes employed in litigation by tobacco industry witnesses. Tobacco Control 15(Supplement 4): 54-67, 2006. (72 refs.)

Objectives: To identify key themes related to tobacco advertising and promotion in testimony provided by tobacco industry-affiliated witnesses in tobacco litigation, and to present countervailing evidence and arguments. Methods: Themes in industry testimony were identified by review of transcripts of testimony in the Tobacco Deposition and Trial Testimony Archive (http://tobaccodocuments.org/datta)from a sample of defence witnesses, including three academic expert witnesses, six senior executives of tobacco companies, and one industry advertising consultant. Counterarguments to the themes embodied in defence testimony were based on information from peer-reviewed literature, advertising trade publications, government reports, tobacco industry documents, and testimony provided by expert witnesses testifying for plaintiffs. Results: Five major themes employed by defence witnesses were identified: (1) tobacco advertising has a relatively weak "share of voice" in the marketing environment and is a weak force in affecting smoking behaviour; (2) tobacco advertising and promotion do not create new smokers, expand markets, or increase total tobacco consumption; (3) the tobacco industry does not target, study, or track youth smoking; (4) tobacco advertising and promotion do not cause smoking initiation by youth; and (5) tobacco companies and the industry adhere closely to relevant laws, regulations, and industry voluntary codes. Substantial evidence exists in rebuttal to these arguments. Conclusions: Tobacco industry-affiliated witnesses have marshalled many arguments to deny the adverse effects of tobacco marketing activities and to portray tobacco companies as responsible corporate citizens. Effective rebuttals to these arguments exist, and plaintiffs' attorneys have, with varying degrees of success, presented them to judges and juries.

Henningfield JE; Rose CA; Zeller M. Tobacco industry litigation position on addiction: Continued dependence on past views. Tobacco Control 15(Supplement 4): 27-36, 2006. (30 refs.)

This paper reviews the tobacco industry's litigation strategy for addressing the addiction issue through trial testimony by its experts, and opening and closing statements by its lawyers. Despite the fact that several companies now claim to accept, in varying degrees, the conclusions of the Surgeon General concerning tobacco addiction, the tobacco industry litigation strategy pertaining to addiction is essentially unchanged since that of the early 1980s when the issue emerged as crucial. The industry uses its experts and the process of cross-examination of plaintiff's experts to imply that the addictiveness of tobacco and nicotine are more comparable to substances such as caffeine, chocolate, and even milk, than to heroin, cocaine and alcohol. Furthermore, the tobacco industry contends that the definition of addiction has now become so broadened as to include carrots and caffeine and hence that any concurrence that smoking is addictive, does not imply that cigarettes are addictive to the standards that drugs such as heroin and cocaine are addictive. Finally, the industry has continuously asserted that tobacco users assumed the risks of tobacco since they understood that quitting could be difficult when they began to use, and moreover, that the main barrier to cessation is lack of desire or motivation to quit and not physical addiction. These positions have been maintained through the 2004-2005 US Government litigation that was ongoing as the time of this writing.

Houle B; Siegel M. Smoker-free workplace policies: Developing a model of public health consequences of workplace policies barring employment to smokers. Tobacco Control 18(1): 64-69, 2009. (77 refs.)

A marked shift in tobacco-related workplace health promotion intervention involves the adoption of policies barring employment to smokers. We discuss the potential public health consequences of these policies on those affected-smokers, their families, the surrounding community and society at large. We find a lack of published evidence evaluating the effectiveness and consequences of these policies. By developing a model of policy effects, we outline possible unintended consequences. With such large gaps in the evidence base and the potential for deleterious consequences, we argue for increased discussion about the use of smoker-free employment policies as a public health intervention and for increased engagement of employers by the public health community in worksite health promotion.

Ibrahim JK; Glantz SA. Tobacco industry litigation strategies to oppose tobacco control media campaigns. Tobacco Control 15(1): 50-58, 2006. (75 refs.)

Objective: To document the tobacco industry's litigation strategy to impede tobacco control media campaigns. Methods: Data were collected from news and reports, tobacco industry documents, and interviews with health advocates and media campaign staff. Results: RJ Reynolds and Lorillard attempted to halt California's Media Campaign alleging that the campaign polluted jury pools and violated First Amendment rights because they were compelled to pay for anti-industry ads. The American Legacy Foundation was accused of violating the Master Settlement Agreement's vilification clause because its ads attacked the tobacco industry. The tobacco companies lost these legal challenges. Conclusion: The tobacco industry has expanded its efforts to oppose tobacco control media campaigns through litigation strategies. While litigation is a part of tobacco industry business, it imposes a financial burden and impediment to media campaigns' productivity. Tobacco control professionals need to anticipate these challenges and be prepared to defend against them.

Jenkins M; Moore B; Lambert E; Clarke A. DUI treatment programs and religious freedom: Does Cutter v. Wilkinson change the analysis? University of Maryland Law Journal of Race, Religion, Gender and Class 5(Fall): 351-384, 2005. (190 legal refs.)

SUMMARY: ... Legal commentators and scholars consistently argue that a compulsory mandate to attend Alcoholics Anonymous (A.A.), either as a condition of probation or as an inmate, violates the First Amendment. ... There exists a need to reevaluate A.A. as a condition of probation, in order to rehabilitate the offender and to free society from the dangers posed by alcohol-related driving incidents. ... Three years after Boerne, Congress, in yet another attempt to reassert the "compelling interest test' and the "least restrictive means" test, passed the Religious Land Use and Institutionalized Persons Act (RLUIPA). ... RLUIPA may impose burdens on prison administrators as they act to accommodate an inmate's right to free exercise. ... " Although deference to prison and probation authorities has been a consistent theme with the Court, it serves here as a warning not to read RLUIPA's compelling interest and least restrictive means tests too rigorously. ... And, coming closer to home, a parole officer could not recommend to a parolee who had a serious drinking problem that he enroll in Alcoholics Anonymous, even if the officer believed that this was the only alcoholic-treatment program that would keep the parolee from committing further crimes. ... If the state's purpose is to eradicate alcoholism and its harmful effects on society, the line should be drawn closer to society, requiring A.A. attendance for assistance to the alcohol-related offenders. ...

Mosher JF. Litigation and alcohol policy: Lessons from the US tobacco wars. (review). Addiction 104(Supplement 1): 27-33, 2009. (19 refs.)

This paper explores the role of litigation in preventing alcohol-related harms, identifying lessons from the use of litigation in tobacco control policy in the United States. It analyzes the key components of litigation in an international context, provides a case study of its potential use in addressing the marketing of alcopops to youth and offers recommendations for pursuing litigation strategies in future alcohol policy efforts. The paper's analyses are based on both original and secondary legal research. State and federal case law and secondary sources are reviewed in assessing lessons learned from tobacco litigation in the United States and the potential role of litigation in alcohol policy, both in the United States and internationally. Assessment of alcohol litigation cases and state and federal laws and regulations provides the foundation for the alcopops case study. The tobacco litigation experience demonstrates that litigation is a powerful tool in addressing aggressive marketing by purveyors of addictive products such as alcohol. To be effective at both national and international levels, litigation should encompass a broad array of legal tactics designed to identify and restrict unfair, deceptive and misleading alcohol marketing tactics and should be utilized in conjunction with complementary prevention strategies. Research conducted on the impact of alcohol marketing on youth alcohol consumption and problems is needed to support potential litigation claims. Developing litigation expertise within the alcohol policy field and building collaboration with litigation specialists in tobacco control should also be considered a high priority.

Jill BJ. The constitutional right to make medical treatment decisions: A tale of two doctrines. (review). Texas Law Review 86(2): 277-345, 2007. (155 refs.)

The Supreme Court has taken very different approaches to the question whether individuals have a right to make autonomous medical treatment choices, depending on the context. For example, in cases concerning the right to choose "partial-birth" abortion and the right to use medical marijuana, the Supreme Court reached radically different results based on radically different reasoning. More recent developments, including last Term's decision in Gonzales v. Carhart, have only highlighted the doctrinal confusion and the need for a resolution. In light of this pressing need, the goal of this Article is to view all of the constitutional cases touching on medical treatment decisions as one body of doctrine, as no other scholar has done. This new perspective reveals that there are in fact two distinct lines of constitutional doctrine touching on the right to make medical treatment decisions: the "public-health" line of cases, which emphasizes the police power of the state over individual rights, and the "autonomy" line of cases, which emphasizes individual bodily integrity and dignity interests. These lines of cases have grown up in parallel, appearing to represent airtight doctrinal categories while in fact addressing the same fundamental question. In addition, courts have applied varying degrees of deference to legislative determinations of medical fact without any logical consistency, perhaps based on largely superficial determinations about what type of case is before them. This Article concludes that a constitutional right to protect one's health should be consistently recognized, that the recognition of this right should not be artificially limited by excessive deference to legislative findings of medical fact; and that this right will have to be carefully balanced against the state's real and legitimate interest in regulating the practice of medicine to protect the public.

Johnston JB. Drugs, Dogs, and the Fourth Amendment: An Analysis of Justice Stevens' Opinion in Illinois v. Caballes. Bridgeport Law Review/Quinnipiac Law Review 24: 659-680, 2006. (166 legal refs.)

Summary: When a drug dealer delivers illegal narcotics to the American market place, he or she frequently uses our nation's roadways. ... In an opinion, authored by Justice John Paul Stevens, the Court held that Caballes did not have a reasonable expectation of privacy in transporting the discovered marijuana that was detected by the drug sniffing dog. ... While transporting narcotics can be a relatively simple task, there is a huge amount of risk should the drug trafficker get caught while engaged in his or her craft. ... If Trooper Gillette stopped Caballes unlawfully, there would have been no question as to the Court suppressing the seizure of the marijuana and reversing the conviction. ... In a matter of minutes, the Troopers were able to confirm the presence of illegal narcotics in Caballes' car thanks to the drug sniffing dog. ... For this reason, the Court found that a law enforcement investigation, like the one conducted by Trooper Gillette which does not infringe upon one's "legitimate interest in privacy," does not constitute a search pursuant to the Fourth Amendment of the United States Constitution. ... The fact of the matter is that the missteps of the past should not stop the law enforcement profession from seeking fair and effective ways to apprehend those who use America's roadways to benefit from the illegal drug trade. ... Throughout this article, the author arguesthat the long-term goals of the Fourth Amendment are two-fold. First, the most well known objective of Fourth Amendment jurisprudence is that it protects individuals from unreasonable searches and seizures by the police. Second, the United States Supreme Court generally interprets the Fourth Amendment as allowing law enforcement to lawfully apprehend the criminal element without placing unreasonable constraints in their path. Justice Stevens' opinion in Caballes provides a perfect example of the dual role of the Fourth Amendment. This article provides an analysis of Caballes and its implications for both law enforcement and the motoring public. It further examines the use of drug sniffing dogs as a tool to uncover drug trafficking strategies that involve the use of our country's roads. In addition, this article offers an in-depth review of the Court's implementation of Fourth Amendment jurisprudence in prior search and seizure cases and their effect on Justice Stevens' opinion in Caballes. Prior to commencing our discussion of Caballes, however, some background information is necessary to better understand the tensions that exist between drugs, drug sniffing police dogs, and our constitutional rights. More specifically, this information will provide background information on the tension that exists between law enforcement's duty to protect the public from drug traffickers, and its obligation to protect the public from losing its civil liberties.

Jones AS; Austin WD; Beach RH; Altman DG. Funding of North Carolina tobacco control programs through the master settlement agreement. (editorial). American Journal of Public Health 97(1): 36-44, 2007. (46 refs.)

Changing political and economic forces in 1 tobacco-dependent state, North Carolina, demonstrate how the interplay between these forces and public health priorities has shaped current allocation of Master Settlement Agreement funds. Allocation patterns demonstrate lawmakers' changing priorities in response to changes in the economic climate; some of the agreement's funds targeted to tobacco farmers appear to reflect objectives favored by tobacco manufacturers. Funds earmarked for health have underfunded youth tobacco prevention and tobacco control initiatives, and spending for tobacco farmers in North Carolina has not lived up to the rhetoric that accompanied the original agreement. We discuss the implications of these findings for future partnerships between public health advocates and workers as well as tobacco control strategies.

Kyriakoudes LM. Historians' testimony on "common knowledge" of the risks of tobacco use: A review and analysis of experts testifying on behalf of cigarette manufacturers in civil litigation. Tobacco Control 15(Supplement 4): 107-116, 2006. (16 refs.)

A qualitative analysis of the trial and deposition testimony of professional historians who have testified on behalf of the tobacco industry shows that defence historians present a view of past knowledge about tobacco in which the public was frequently warned that cigarettes were both deadly and addictive over the broad historical period. While defence historians testify to conducting significant levels of independent research, they also draw upon a common body of research conducted by industry counsel to support its litigation efforts. Defence historians unduly limit their research materials, ignoring industry records and, therefore, critically undermine their ability to evaluate industry activity in the smoking and health controversy as it unfolded in historical time. A consequence is that defence historians present a skewed history of the cigarette in which the tobacco industry all but ceases to exist.

LaCroix T. Student drug testing: The blinding appeal of in loco parentis and the importance of state protection of student privacy. (notes and comment). Brigham Young University Education and Law Journal 8: 251+, 2008. (155 refs.)

SUMMARY: ... This means the adults in their lives have two choices: (1) return fire by never letting their children out of sight, constantly searching personal belongings for drugs, and even forcing their own children to submit to random drug tests, or (2) dismantle these intrusive weapons in enlightened recognition that a futile drug war with their own children merely destroys any possibility of developing a relationship of trust and respect. ... Acton (1995) In the late 1980s, students in the small logging town of Vernonia, Oregon, like many teenagers across the country, became noticeably attracted to the "drug culture" and student drug use was on the rise. ... The Court went on to find that the other part of the intrusion - the government's scientific examination of a citizen's bodily fluids - is not significant because the urine is tested only for drugs and the results given only to a few people. ... The unique needs of schools in dispensing discipline, and the unique role of school personnel as quasi-parents, do not in any way erase the fact that school personnel are state actors, or that students are American citizens. ... The foundation of the majority's holding is that extracurricular activities are voluntary, and thus participation in them is detached from compulsory attendance laws, and therefore the students themselves, and not the government, subject those who participate in extracurricular activities to drug testing. ... In many schools, teachers only get together to discuss student achievement data." ... Rejecting the notion in Earls that students' privacy rights implicated by the tests are trivial, the Pennsylvania court found it critical that the school district had offered no reason to believe a drug problem actually existed in its schools.

Leong GB; Leisenring SE; Dean MD. Commentary: Intoxication and settled insanity - Unsettled matters. (editorial). Journal of the American Academy of Psychiatry and the Law 35(2): 183-187, 2007. (10 refs.)

The role of exogenous substances in the genesis of mental symptoms has found relevance in some jurisdictions when a defense of settled insanity is raised. However, the current nosology and knowledge base reveal ambiguity and unresolved questions about the present science related to settled insanity.

Levy DE; Meara E. The effect of the 1998 Master Settlement Agreement on prenatal smoking. Journal of Health Economics 25(2): 276-294, 2006. (37 refs.)

The Master Settlement Agreement (MSA) between the major tobacco companies and 46 states created an abrupt 20% increase in cigarette prices in November 1998. Earlier estimates of the elasticity of prenatal smoking implied that the price rise would reduce prenatal cigarette smoking by 7-20%. Using birth records on 9.8 million US births between January 1996 and February 2000, we examined the change in smoking during pregnancy and conditional smoking intensity in response to the MSA. Overall, adjusting for secular trends in smoking, prenatal smoking declined by less than half what was predicted in response to the MSA.

Lines R; Elliott R. Injecting drugs into human rights advocacy. International Journal of Drug Policy 18(6): 453-457, 2007. (17 refs.)

In November 2004, John Shelley initiated legal action against the British Home Secretary under the U.K. Human Rights Act. A prisoner in HMP Long Lartin, Shelley claimed that the health of prisoners who inject drugs was being jeopardised by a lack of access to syringe exchange programmes. This, he argued, forced prisoners to share used syringes, putting them at high risk of HIV infection. Shelley claimed that the failure of the government to provide prisoners with access to sterile syringes was in violation of Article 2 (the right to life), Article 3 (the prohibition of torture and inhuman or degrading treatment) and Article 8 (the right to respect for private life) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention for the Protection of Human Rights and Fundamental Freedoms, 1950). Whilst Shelley's action was dismissed by the U.K. courts in April 2005, it will be considered later this year by the European Court of Human Rights in Strasbourg. The Shelley case highlights a major concern for HIV/AIDS, harm reduction and prisoners' rights advocates, namely the systematic denial of harm reduction measures to people in prison, placing them at unnecessary risk of preventable harms including HIV and HCV infection. If successful, the Shelley case would represent an important victory for harm reduction advocates internationally by creating the legal basis to expand prison needle exchange programmes (PNEPs) across member states of the Council of Europe. This essay considers the range of ways in which those who use drugs are victims of human rights violations.

Loomis BR; Farrelly MC; Mann NH. The association of retail promotions for cigarettes with the Master Settlement Agreement, tobacco control programmes and cigarette excise taxes. Tobacco Control 15(6): 458-463, 2006. (30 refs.)

Background: Retail stores are the primary medium for marketing cigarettes to smokers in the US. The prevalence and characteristics of cigarette retail advertising and promotions have been described by several investigators. Less is known about the proportion of cigarette sales occurring as part of a retail promotion and about the effects of tobacco control policies on cigarette promotions. Objective: To estimate the effect of the Master Settlement Agreement (MSA), state tobacco control programme funding and cigarette taxes on retail promotions for cigarettes in supermarkets in the US. Outcome measures: Proportion of cigarette sales occurring under a retail promotion and the value of multipack promotions (eg, buy one pack, get one pack free) and cents- off promotions, measured using scanner data in supermarkets from 50 retail market areas from 1994 to 2004. Results: Promoted cigarette sales have increased significantly since the MSA (p < 0.01), and are higher in market areas with high tobacco control programme funding (p < 0.01) and high cigarette tax (p < 0.01). The value of a multipack promotion is higher since the MSA (p < 0.01) and in market areas with high cigarette tax (p < 0.01). The value of a cents-off promotion is negatively related to the MSA (p < 0.01), with mixed results for tobacco control programme funding (p < 0.05), and is unassociated with tax. Conclusions: Higher promoted cigarette sales and increased promotional values in market areas with strong tobacco control policies, compared with market areas with weaker tobacco control policies, may partially offset the decline in smoking achieved in those areas.

Mack AH; Lightdale HA. Forensic addiction psychiatry for the clinician, the expert, and the in-between. Addictive Disorders and Their Treatment 5(2): 77-86, 2006. (49 refs.)

INTRODUCTION: Substances of abuse are commonly associated with legal issues. Both addiction psychiatrists and general psychiatrists may encounter the nexus of substances, the law, and clinical acumen. MATERIALS AND METHODS: This review addresses some generalized and some specific areas of intersection, with a focus on the role of the psychiatrist. RESULTS: We cover basics of the American legal system; the relationship between interpersonal violence and substances; and areas of criminal, civil, and administrative law in which substance use may be a factor. Finally, the review provides an overview of addiction issues in correctional psychiatry and some of the legal processes currently used to leverage treatment in jurisdictions around the nation. CONCLUSIONS: The interplay between legal issues and substances is significant and will continue to evolve in the future.

Max W; Tsoukalas T. Economics on trial: The use and abuse of economic methods in third party tobacco litigation. Tobacco Control 15(Supplement 4): 77-83, 2006. (14 refs.)

Objective: To analyse how the tobacco industry responded to economic models and methods used in third party payer tobacco litigation that has occurred since 1994. Methods: Identified 12 third party payer cases and reviewed the transcripts using WinMax qualitative software. Focused on defendant's opening and closing statements, followed by trial testimony, depositions, and plaintiff's transcripts. Results: Tobacco industry defendants tried to create doubt and confusion about whether or not smoking caused disease and by extension led to health care costs; argued that the economic models used were not legitimate and were not appropriate for estimating the costs incurred by plaintiffs; and criticised the data sources used because they did not consist of the individuals whose health care costs were being sought. Conclusions: Faced with a new and unprecedented wave of anti-tobacco litigation from third party payers, the tobacco industry tried to adapt strategies that had been used successfully in the past-creation of unfounded doubt and confusion, and manipulation of the discovery process to force plaintiffs to withdraw or concede defeat. The strategies failed because credible economic models of the health care costs of smoking had been developed that were able to quantify the damages to a large group of health care recipients, because plaintiff's attorneys were able to commit significant resources and willing to undertake substantial financial risk to defend their new legal approaches, and because previous arguments related to individual responsibility were deemed irrelevant in third party litigation.

McAlister AL; Huang P; Ramirez AG. Settlement-funded tobacco control in Texas: 2000-2004 Pilot project effects on cigarette smoking. Public Health Reports 121(3): 235-238, 2006. (8 refs.)

Because settlement proceeds allocated for tobacco control in Texas are insufficient for statewide activity at federally recommended funding levels, the Texas Department of State Health Services has used the available funds in quasi-experimental pilot studies in which varying amounts of support are provided for selected parts of the state. Trends in tobacco use were measured in telephone surveys of 7,998 (2000), 5,150 (2002), and 5,721 (2004) adults. Prevalence of cigarette smoking declined by almost one-third in the pilot area where comprehensive and sustained pilot activities to reduce tobacco use were organized at close to the federally recommended funding level. Significantly smaller reductions were observed in other parts of the state. In the group with the highest use, white non-Hispanic men, cigarette consumption declined by half in the pilot area. It is reasonable to expect similar reductions in tobacco use if funds are provided for statewide expansion of the pilot activities.

Milberger S; Davis RM; Douglas CE; Beasley JK; Burns D; Houston T et al. Tobacco manufacturers' defence against plaintiffs' claims of cancer causation: Throwing mud at the wall and hoping some of it will stick. Tobacco Control 15(Supplement 4): 17-26, 2006. (19 refs.)

Background: In the late 1990s and the early part of this decade, the major US cigarette manufacturers admitted, to varying degrees, that smoking causes cancer and other diseases. Objective: To examine how tobacco manufacturers have defended themselves against charges that their products caused cancer in plaintiffs in 34 personal injury lawsuits, all but one of which were litigated between the years 1986 and 2003. Methods: Defence opening and closing statements, trial testimony, and depositions for these cases were obtained from the Tobacco Deposition and Trial Testimony Archive (http://tobaccodocuments.org/datta/). All available defence-related transcripts from these cases were reviewed and a content analysis was conducted to identify common themes in the defendants' arguments. Results: After review of the transcripts, defendants' arguments were grouped into seven categories: (1) there is no scientific proof that cigarette smoking causes lung cancer; (2) the plaintiff did not have lung cancer as claimed; (3) the plaintiff had a type of lung cancer not associated with cigarette smoking; (4) the plaintiff had cancer that may have been associated with cigarette smoking or smokeless tobacco use, but tobacco products were not to blame in this particular case; (5) the plaintiff had cancer that may have been associated with cigarette smoking, but the defendant's cigarette brands were not to blame; (6) the defendant's cigarettes (or smokeless tobacco) may have played a role in the plaintiff's illness/death, but other risk factors were present that negate or mitigate the defendant's responsibility; and (7) the defendant's cigarettes may have been a factor in the plaintiff's illness/death, but the plaintiff knew of the health risks and exercised free will in choosing to smoke and declining to quit. Use of the argument that smoking is not a proven cause of lung cancer declined in frequency during and after the period when tobacco companies began to publicly admit that smoking causes disease. Corresponding increases occurred over time in the use of other arguments (namely, presence of other risk factors and "free will"). Conclusions: Despite the vast body of literature showing that cigarette smoking causes cancer, and despite tobacco companies' recent admissions that smoking causes cancer, defendants used numerous arguments in these cases to deny that their products had caused cancer in plaintiffs. The cigarette companies, through their public admissions and courtroom arguments, seem to be saying, "Yes, smoking causes lung cancer, but not in people who sue us".

Morse SJ. Addiction, genetics, and criminal responsibility. Law and Contemporary Problems 69(1/2): 165-208, 2006. (132 legal refs.)

This article has two simple underlying theses. The first is that it is impossible to understand the relation of any variable to criminal responsibility without having in place an account of criminal responsibility. The second is that discovery of genetic or of any other physical or psychosocial cause of action raises no new issues concerning responsibility, and discovery of such causes does not per se create an excusing or mitigating condition for criminal conduct or any other type of behavior. This article begins in Part II with a brief description of the phenomenology of addiction, describing generally what is known about the behavioral aspects of addiction in addition to the basic criteria of craving, seeking, and using. Thinking sensibly about the relation of addiction to criminal responsibility is impossible unless it is first understood that this condition is "defined solely in behavioural terms." Part III addresses the contrast between the legal and scientific images of behavior, using the disease concept of addiction, now fueled by discoveries of genetic predisposition, as a prime example of the contrast. Part IV offers a general model of criminal responsibility to guide the analysis of responsibility for addiction-related criminal behavior, offering the best positive account of the present system. The model's essential criteria are behavioral, broadly understood to refer to actions and mental states. Part V deals with persistent confusions about responsibility. Part VI describes those aspects of addiction, if any, for which persons might be held morally or legally responsible, concluding that only actions related to addiction are appropriate objects for ascribing criminal responsibility. Part VII addresses the causal role genetics plays in explaining addiction. This discussion is deferred until this point because, as earlier parts explain, no particular causal explanation of any behavior, including a biological explanation, entails necessary legal consequences. In particular, the existence of a genetic explanation for addiction does not demonstrate that addicts are not acting when they seek and use substances or engage in other activities related to their addiction and a genetic explanation produces no necessary legal conclusion concerning responsibility for such addiction-related actions. Finally, Part VIII considers individual and social responsibility for the addiction-related actions. It begins by discussing in detail the meaning of those features of addiction - subjective craving and compulsion - that seem the most likely predicates for excuse or mitigation. It argues that understanding the biological roots of craving does not yet yield valid information concerning the strength of craving and seemingly compulsive behavior. This part next addresses the two leading theoretical and legal candidates for an excusing condition - internal coercion and lack of the capacity for rationality. It concludes that most addicts should be responsible for most criminal behavior motivated by addiction, but that addiction can in some cases affect the agent's ability "to grasp and be guided by reason." The last section of this part considers whether society is responsible for addiction-related actions. It concludes that even if most addicts should be held responsible for addiction-related behavior, sensible social policy can do much to reduce both the prevalence of addiction and concomitant criminal behavior. The final part of the paper discusses three legal proposals for reducing the costs associated with addictions and for treating addicts fairly.

Nelson BK. Adding fuel to the fire: United States v. Booker and the crack versus craack versus powder cocaine sentancing disparity. University of Richmond Law Review 40: 1161-1191, 2006. (256 refs.)

The sentencing structures for crack and powder cocaine have been dramatically different since the Anti-Drug Abuse Act of 1986 established a 100:1 ratio as the penalty differential between the two drugs, and set the same punishment for five grams of crack as for five hundred grams of powder cocaine. The ratio was followed in the Federal Sentencing Guidelines (the "Sentencing Guidelines") and has evoked considerable criticism over the past twenty years. Litigants have challenged the ratio in courts, judges have expressed their displeasure with the ratio, and the United States Sentencing Commission (the "Sentencing Commission" or the "Commission") has issued three reports to Congress disapproving of the ratio. Still, offenders have been consistently sentenced according to the once mandatory Sentencing Guidelines following the ratio. In January 2005, the Supreme Court handed down its decision in United States v. Booker, 5 effectively rendering the Sentencing Guidelines advisory instead of mandatory, as they once were. Although the 100:1 ratio lives on in the mandatory minimums, the Sentencing Guidelines would often provide for a sentence harsher than the mandatory minimum. Now, courts have the flexibility to depart from the Sentencing Guidelines when dealing with the crack/powder disparity. The courts may use a lower ratio, as the Sentencing Commission and numerous scholars and judges have suggested, provided that they still abide by the mandatory minimum set forth in 18 U.S.C. 3553(a). In order to understand fully where the Booker decision leaves us with respect to the crack/powder debate, it is necessary to understand the background of cocaine and the history leading up to Booker. To that end, Part II of this comment discusses the history and background of cocaine, including a brief history of drug use, a comparison of crack and powder cocaine, the formation of the 100:1 ratio, and responses to the ratio's formation since 1986. Part III analyzes the topic of sentencing without guidelines, sentencing after the imposition of the Sentencing Guidelines, and the erosion of the Guidelines leading up to Booker. Part IV then combines the two broad topics and analyze the impact that the Booker decision will likely have on the ongoing debate over the penalties for crack and powder cocaine. It will explain how the decision adds more momentum to the debate, and argue that it adds enough fuel to the fire to encourage changes to the current penalty structure.

Prater JB. West Virginia's painful settlement: How the oxycontin phenomenon and unconventional theories of tort liability may make pharmaceutical companies liable for black markets. Northwestern University Law Review 100(Spring): 1409 -1437, 2006. (217 legal refs.)

Since the discovery of a veritable goldmine in the now-notorious waves of tobacco and asbestos litigation, many plaintiffs' attorneys have been searching relentlessly for the "next big thing" in products liability litigation: a new source of tort claims capable of providing a massive supply of legal fees. This Comment focuses on the potential policy pitfalls that result form efforts to establish liability through "unconventional" tort theories. Specifically, this Comment focuses on the recent settlement of a suit levied against Purdue Pharma ("Purdue"), the manufacturer of OxyContin, by the state of West Virginia. That suit asserted causes of action including, inter alia, negligent marketing and public nuisance, and ultimately settled in November 2004, with Purdue agreeing to pay $10 million to the state of West Virginia. Part I of this Comment discusses the history of the drug OxyContin and its sole active ingredient, oxycodone. Contrary to popular misunderstanding, OxyContin is not a revolutionary drug at the chemical level but, rather, a new means of administering a decades-old painkiller. Part I goes on to discuss the means by which OxyContin users and dealers fuel black markets via drug diversion and takes note of the marked geographic concentration of illegal OxyContin trade and abuse.Part II argues that the harms caused by OxyContin stem primarily from deliberate misuse of the drug, rather than its proper use by "legitimate" patients. Legitimate patients are defined as those who hold valid prescriptions and administer the drug with legitimate intentions, i.e., use as directed. By contrast, abusers are defined as those who have obtained OxyContin on the black market or through an illegal prescription and seek to use the drug for recreation. Part II argues that the active role that OxyContin abusers play in harming themselves is precisely the reason that they have been so unsuccessful as plaintiffs. However, one OxyContin suit has met with success - that brought by West Virginia. Part IV discusses the unique role that public entities can play as plaintiffs in litigating cases with extended causation complications. Specifically, it notes that public entities are in a unique position, insofar as they can assert liability for the harms that a product's marketing and distribution bring to bear on an entire community. Part IV briefly sketches the jurisprudential history of negligent marketing and public nuisance, two theories that public entities have applied in novel ways through asbestos, tobacco, and, especially, firearms litigation. First, Part IV argues that, by effectively ignoring the buffering role that physicians play in the marketing of controlled substances and by failing to differentiate between the harms caused by the "legitimate" use of prescription narcotics and their intentional abuse, West Virginia's negligent marketing and public nuisance claims against Purdue effectively sought to establish liability where there should have been none. Second, Part IV argues that this circumstance is driven as much by the need for public revenues as it is by the temptation to use tort law as a surrogate where proper legislative regulation is lacking. Part V concludes by stressing that it is precisely in the context of a public entity suit that such "questionable" claims have real force. Economic incentives - such as the avoidance of legal fees and, of particular relevance in the public entity context, negative media coverage - may lead even the most aggressively defensive companies to fold early in litigation, and thus implicitly consent to bear some degree of liability for regulatory failure. The ultimate result is that litigation may have a chilling effect on the treatment of chronic pain, insofar as it makes pharmaceutical companies liable for black markets that they may neither condone nor control.

Proctor RN. "Everyone knew but no one had proof": Tobacco industry use of medical history expertise in US courts, 1990-2002. (editorial). Tobacco Control 15(Supplement 4): 117-125, 2006. (15 refs.)

Historians have played an important role in recent tobacco litigation, helping the industry with its defence of "common knowledge" and "open controversy". Historians renarrate the past, creating an account for judges and juries that makes it appear that "everyone has always known" that cigarettes are harmful, meaning that smokers have only themselves to blame for their illnesses. Medical historians are also employed to argue that "honest doubts" persisted in the medical community long past the 1950s, justifying as responsible the industry's longstanding claim of "no proof" of hazards. The industry's experts emphasise the "good science" supported by the industry, and ignore the industry's role in spreading doubts about the reality of tobacco hazards.

Rajkumar R; Gross CP; Forman HP. Is the tobacco settlement constitutional? Journal of Law, Medicine & Ethics 34(4): 748-+, 2006. (13 refs.)

In August 2005, the Competitive Enterprise Institute (CEI), a conservative advocacy organization, filed a lawsuit in Louisiana challenging the legality of the 1998 Master Settlement Agreement (MSA). The suit alleges that the MSA, under which the states receive monetary payments and the four major tobacco companies are insulated from price competition, violates the Compact Clause and other provisions of the U. S. Constitution. This lawsuit threatens to unravel of one of the most significant opportunities to improve public health in United States history. We consider the merits of the lawsuit, the problems with the MSA that it highlights, and the potential consequences of the suit for public health.

Reise ST. Comment. "Just Say NO" to pro-drug and alcohol student speech: The constitutionality of school prohibitions of student speech promoting drug and alcohol use. Emory Law Journal 57: 1259-1299, 2008. (361 refs.)

SUMMARY: ... In applying Tinker, the court held that the school violated Frederick's constitutional rights because his speech did not cause a substantial disruption. ... Therefore, allowing schools to prohibit vulgar, lewd, obscene, or offensive speech only when it causes a substantial disruption or occurs during school-sponsored activities frustrates the larger goal of protecting children from inappropriate speech. . ... The court attempted to limit its holding to speech that disapproves of substance abuse, finding that Guiles' shirt conveyed drug and alcohol use in a negative light. ... The Hazelwood dissent, discussing this broad reading of Fraser, argued, "If mere incompatibility with the school's pedagogical message were a constitutionally sufficient justification for the suppression of student speech, school officials could censor any student speech ... , converting our public schools into "enclaves of totalitarianism.'" ... Similarly, prohibiting pro-drug and alcohol student speech will assist schools in protecting students from the effects of drugs and alcohol. ... Pro-drug and alcohol speech is a clearly defined category of student speech that does not give a school broad authority to censor additional student expression. Part I of this Comment introduces the concept of the "school power continuum" as a way of understanding the Supreme Court's approach to defining the nature of school power and ability to limit or restrict free speech. Part II analyzes the case law relating to student expression, beginning with the trilogy of Supreme Court student-speech cases. This Part contends that, under most interpretations of these cases, schools lack the authority to restrict pro-drug and alcohol student speech. Part III demonstrates the importance of this issue and why schools should have the authority to restrict pro-substance use speech. That Part also describes the current state of drug and alcohol use in schools and illustrates the influence pro-substance use messages have on an adolescent's decision to use drugs or alcohol. Finally, Part IV asserts that the best solution is to create a new category of student speech. This contention is supported by evidence that the Court has increased school power in relation to students' constitutional rights when the issues involved drug and alcohol use. That Part also addresses arguments that schools already wield too much power over student speech.

Riddle D; Bales R. Disability claims for alcohol-related misconduct. St. John's Law Review 82(spring): 699+, 2008

SUMMARY: ... The first employee tells the supervisor that an alcoholic binge the preceding night caused her to oversleep. ... Applied to the alcohol-related misconduct context, this "Inference of" approach allows employees fired for alcohol-related misconduct to prove a prima facie case with circumstantial evidence of disability discrimination. ... Therefore, under the Federal Circuit's approach, employees who notify their employer of their alcoholism only after it has resulted in misconduct are not entitled to reasonable accommodation for their disability because the employer was not notified of the disability before the misconduct occurred. ... Allowing an alcoholic employee to establish a prima facie case by establishing a causal connection between his absenteeism and his disability would shift the burden to the defendant to articulate a legitimate, nondiscriminatory reason for the adverse employment action. ... The proper approach lies somewhere in the middle, only allowing disability-related misconduct claimants to establish a prima facie case if employees can show that they were fired under circumstances giving an "Inference of" disability discrimination. ... This Article argues that this "Inference of" approach is the better approach because it allows employers to offer the employee misconduct as a legitimate, nondiscriminatory reason for the adverse employment action, and it prevents employers from using alcohol-related misconduct as a pretext for disability-based discrimination.

Sherbine EL. Comment: Does Cutter v. Wilkinson change the analysis of mandated DUI treatment programs? A critical response. University of Maryland Law Journal of Race, Religion, Gender and Class 6(Spring): 223-249, 2006. (182 legal refs.)

This is a response to the article by Jenkins et al in Fall 2005 which argued that mandatory attendance at Alcoholics Anonymous(A.A.) as a condition for probation or incarceration did not violate the First Amendment, despite A.A.'s "somewhat religious" nature, given A.A.'s unique effectiveness in treating alcoholism and the strong societal interest against negative alcohol-related conduct. Further, the A.A. proponents argued that the prospect for mandatory A.A. attendance, in the face of a First Amendment challenge, improved significantly following the Supreme Court's decision in Cutter v. Wilkinson, given the Court's supposedly less restrictive view of the Establishment Clause in that case. ... " Thus, in the dissenters' view, some "reconciliation with the Lemon terminology" was necessary for accommodation statutes because state alleviation of government-imposed burdens on religious exercise was permissible. ... Second, the A.A. proponents argued that mandatory A.A. attendance passes the compelling interest tests established by Congress in RFRA and RLUIPA and by state governments in similar legislation because the Court has relaxed the meaning of these tests in Cutter. ... The A.A. proponents argued that mandatory participation in A.A. does not violate the Free Exercise Clause because of the state's compelling interest in preventing alcohol-related conduct, the unique effectiveness of A.A. in treating alcoholism, and an alleged softening of the compelling interest standard for prison and penological authorities in Cutter. ... When Cutter is considered within the appropriate context as a question of religious accommodation, however, the arguments for mandatory A.A. attendance fail to withstand scrutiny. ...

Stout RG; Farooque RS. Claims of amnesia for criminal offenses: Psychopathology, substance abuse, and malingering. Journal of Forensic Sciences 53(5): 1218-1222, 2008. (47 refs.)

The forensic psychiatric examiner often encounters defendants who deny memory for their offense. Past research proposes a variety of factors to account for offense amnesia. To date there have been few systematic studies of offense amnesia in relation to psychiatric diagnosis, either alone or in combination with other known factors such as substance use and malingering. We studied 53 pretrial felony defendants who had been referred for psychiatric examination: 40% claimed amnesia for their offense. Examinees with psychotic disorders in general, and schizophrenia in particular, were relatively less likely to claim amnesia than were examinees with other diagnoses. Substance use at the time of the offense and associated substance use disorder diagnoses were positively associated with offense amnesia. Malingering diagnosed by general clinical criteria was a poor predictor of amnesia claims. These data suggests that two prominent reasons for referral for forensic psychiatric evaluation include the presence of psychotic symptoms and claims of amnesia for the offense.

Strouse BM. Inconsistent legislation, interpretation, and application: Iowa's Dramshop Act and its failed purposes. (note). Drake Law Review 56: 1117+, 2008

SUMMARY: ... Justice Schultz noted in his Connolly dissent that "preemption of all common law liability would relieve the licensee from civil responsibility for the sale of kegs and cases of beer or other intoxicants to sober minors, who do the predictable thing - drink to the point of intoxication and then drive vehicles on the streets and highways." ... Thirty other states have legislation that "enables victims to collect damages from the liquor licensee or permittee that either sold alcohol to an intoxicated person, served alcohol to an intoxicated person, or both." ... As previously discussed, the initial purpose of the Iowa Dramshop Act was to provide a remedy in situations when the common law had not previously done so. ... Fifteen months after Haafke, a narrow majority in Connolly cited the dissent in Haafke, holding that "the dramshop act preempts the tort field as to licensees and permittees ." ... According to the Fuhrman court, Connolly was rightly decided because the narrow issue before the Connolly court was whether the legislature set the parameters of the Dramshop Act; essentially, whether the legislature intended to preempt the field of dramshop torts.

Swan GS. The law and economics of state-sanctioned medical marijuana: Gonzales v. Raich. Florida Coastal Law Review 7(Summer): 473-552, 2006. (120 legal refs.)

The following pages review and assess the June 6, 2005, opinion of the Supreme Court in Gonzales v. Raich. In Raich, the question was whether the Congressional authority over interstate commerce included authority to forbid marijuana cultivation and consumption locally, in compliance with a state enactment. ... Besides, in Wickard the Supreme Court looked to the actual effects upon interstate commerce of the activity in controversy. ... Assumedly, the Raich majority did hold that intrastate cultivation and possession of medicinal marijuana arguably carries "a substantial effect on interstate commerce. ... The breadth of a federal statute conveys nothing as to "whether intrastate activity substantially affects interstate commerce, let alone whether it is necessary to the scheme: "[b]ecause medical marijuana users in California and elsewhere are not placing substantial amounts of cannabis into the stream of interstate commerce, Congress may not regulate them under the substantial effects test, no matter how broadly it drafts the CSA. ... An externality emerges when the behavior of a first party causes an unintended consequence to a second party. ... The 6-3 decision came as a setback to the medical marijuana movement, but it does not change the laws of the ten States that allow patients to use the drug to ease symptoms.

Torrijos RM; Glantz SA. The US Public Health Service "Treating Tobacco Use and Dependence Clinical Practice Guidelines" as a legal standard of care. Tobacco Control 15(6): 447-451, 2006. (45 refs.)

Background: The important factors in evaluating the role of clinical practice guidelines (CPGs) in medical malpractice litigation have been discussed for several years, but have focused on broad policy implications rather than on a concrete example of how an actual guideline might be evaluated. There are four items that need to be considered in negligence torts: legal duty, a breach of that duty, causal relationship between breach and injury, and damages. Objective: To identify the arguments related to legal duty. Results: The Treating Tobacco Use and Dependence (revised 2000) CPG, sponsored by the US Public Health Service, recommends effective and inexpensive treatments for nicotine addiction, the largest preventable cause of death in the US, and can be used as an example to focus on important considerations about the appropriateness of CPGs in the judicial system. Furthermore, the failure of many doctors and hospitals to deal with tobacco use and dependence raises the question of whether this failure could be considered malpractice, given the Public Health Service guideline's straightforward recommendations, their efficacy in preventing serious disease and cost-effectiveness. Conclusion: Although each case of medical malpractice depends on a multitude of factors unique to individual cases, a court could have sufficient basis to find that the failure to adequately treat the main cause of preventable disease and death in the US qualifies as a violation of the legal duty that doctors and hospitals owe to patients habituated to tobacco use and dependence.

Trogdon JG; Sloan FA. Cigarette taxes and the Master Settlement Agreement. Economic Inquiry 44(4): 729-739, 2006. (45 refs.)

In 1998, 46 states and the four major tobacco companies entered into the Master Settlement Agreement (MSA), which stipulated that the tobacco companies pay the states $206 billion over the next several years. Mean cigarette excise taxes rose substantially, nearly 90%, between 1998 and 2002. The goal of our empirical analysis is to assess whether the changes in cigarette excise taxes can be attributed to litigation brought by the states and the resulting settlements. Using a panel data difference-in-difference approach, the evidence suggests that litigation increased excise taxes: state cigarette excise taxes were approximately $0.10 higher post-MSA.

Venters H; Razvi A; Tobia M; Drucker E. The case of Scott Ortiz: A clash between criminal justice and public health. Harm Reduction Journal 3(article 21), 2006. (10 refs.)

The criminal justice system creates particular challenges for persons with HIV and Hepatitis C, many of whom have a history of injection drug use. The case of Scott Ortiz, taken from public trial and sentencing transcripts, reveals the manner in which incarceration may delay learning of important health problems such as Hepatitis C infection. In addition, the case of Mr. Ortiz suggests the bias in sentencing that a former injection drug user may face. Collaboration between the Montefiore Medical Center residency in Social Medicine and a Bronx legal services agency, Bronx Defenders, yielded the discovery that a decade after diagnosis with HIV and after long term incarceration, Mr. Ortiz was infected with Hepatitis C. Mr. Ortiz only became aware of his advanced Hepatitis C and liver damage during his trial. The second important aspect of this case centers on the justification for lengthy sentence for a burglary conviction. The presiding Judge in Mr. Ortiz's case acknowledged that because of his advanced illness, Mr. Ortiz posed no threat to society as a burglar (the crime for which he was convicted). But the Judge elected to use his discretion to sentence Mr. Ortiz to a term of 15 years to life (as opposed to a minimum of two to four years) based on the idea that the public health would be served by preventing Mr. Ortiz from returning to the life of a street addict, sharing dirty needles with others. Mr. Ortiz reports distant injection drug use, no evidence of current or recent drug use was presented during Mr. Ortiz's trial and he reports no injection drug use for over a decade. In this case, bias against a former injection drug user, masquerading as concern for public health, is used to justify a lengthier sentence. Mr. Ortiz's lack of awareness of his Hepatitis C infection despite long term incarceration, combined with the justification for his dramatically increased sentence, provide examples of how persons within the criminal justice system may face particular challenges to their health. [NB. Article 23 by Small provides a commentary on this case.]

Wakefield M; McLeod K; Perry CL. "Stay away from them until you're old enough to make a decision": Tobacco company testimony about youth smoking initiation. Tobacco Control 15(Supplement 4): 44-53, 2006. (40 refs.)

Objective: To determine common themes used by US tobacco industry witnesses pertaining to youth smoking initiation during litigation in the United States. Methods: Qualitative thematic analysis of transcripts from 29 tobacco litigation cases dating from 1992 to 2002. Results: Youth smoking is portrayed by the tobacco industry as a source of great concern to them. Youth smoking prevention programmes developed by US tobacco companies are supposedly intended to delay decision-making about smoking until age 18, when individuals are then seen to be of an age where they are able to "choose to smoke". Tobacco industry media campaigns, youth access, community and school-based programmes are predicated on peer influence, parental factors, and commercial access being the primary influences on youth smoking uptake, rather than tobacco marketing, inaccurate risk appraisal, price and other factors known to influence youth smoking. Despite substantial financial investment in tobacco industry programmes, their witnesses were able to describe only weak evaluation methods, being preoccupied with measures of message comprehension, programme reach and uptake, and the associated costs of their efforts, rather than any evaluation designed to assess effects on youth smoking behaviour. Conclusion: Stated concerns about youth smoking and youth smoking prevention programmes are put forward in litigation as evidence that the tobacco industry is "serious" about tackling youth smoking, and serve as a primary strategy to improve the tobacco industry's public image. The tobacco industry's evaluation of the effectiveness of their youth smoking prevention programmes is demonstrably insufficient under current public health evaluation standards. Public health and welfare agencies should avoid engagement with tobacco industry-sponsored programmes.

Wenger AA; Bornstein BH. The effects of victim's substance use and relationship closeness on mock jurors' judgments in an acquaintance rape case. Sex Roles 54(7/8): 547-555, 2006. (45 refs.)

Previous research has demonstrated that jurors perceive a female victim who is drunk at the time when she is sexually assaulted as less credible and more deserving of such punishment than a sober victim. In this experiment, we investigated the effect of an alleged acquaintance rape victim's type of substance use and closeness of relationship with the defendant on the judgments of 152 student mock jurors. Participants read a case summary and answered a series of questions about their impressions of the actors and actions involved in the case. Participants perceived a victim who was sober at the time of the incident as more credible than a victim who was intoxicated due to illegal substance use (alcohol or LSD), and convictions were also most likely when the victim was sober. Women perceived the victim as more credible than men did. Higher victim credibility judgments were associated with less rape myth acceptance (RMA) on the part of participants.

Winokur SJ. Seeing through the smoke: The need for national legislation banning smoking in bars and restaurants. George Washington Law Review 75(3): 662-693, 2007. (251 legal refs.)

You pour beers, collect your tips, and if you live in an area without smoking regulations, you probably light a few cigarettes for your patrons. ... After the Supreme Court of New Hampshire struck down a smoking ban in Colebrook, New Hampshire, many restaurant owners who had originally been opposed to the ban realized that the ban actually led to more customers, and several owners chose to keep their establishments smoke-free. ... Chicago recently passed legislation that will take effect in 2008, and Washington, D.C. passed a smoking ban that prohibits smoking in bars as of January 2007. ... The first factor is unlikely to help smoking-ban opponents, as almost every takings case involves regulations regarding land use, and smoking bans are designed to promote public health. ... Why should a nonsmoker who wishes to frequent these places without risks to his or her health be forced to move to a different state or locality? Why should a nonsmoker like Katie Acuff who wishes to work in these places be forced to face increased health risks? Indeed, it would be less burdensome for a smoker simply not to smoke in a public place than for a nonsmoker either not to go to that public place at all, incur significant health costs for going there, or move to an area with a smoking ban. ... Part I of this Note briefly discusses the negative health effects of smoking for both smokers and nonsmokers. Part II explores some of the arguments typically advanced in favor of and against smoking bans in bars and restaurants. This Part also examines some of the key developments in the history of these smoking bans. Part III explores the legal challenges, both procedural and constitutional, that opponents have used to challenge smoking bans. Part IV describes previous congressional legislation regarding smoking. Finally, Part V addresses the need for uniform national legislation banning smoking in bars and restaurants, and identifies the best tool for Congress to use in passing such legislation: its conditional spending power.

Wright C; Schnoll S; Bernstein D. Risk evaluation and mitigation strategies for drugs with abuse liability public interest, special interest, conflicts of interest, and the industry perspective. Annals of the New York Academy of Sciences 1141(Addiction Reviews 2008): 284-303, 2008. (48 refs.)

Risk evaluation and mitigation strategies (REMS) formerly known as Risk Minimization Action Plans (RiskMAPs) are a regulatory technique for dealing with anticipated risks of new medications and are especially important for new drugs with abuse potential. This paper describes the origin and history of risk-management plans for drugs that might be abused, the proper use of these plans in minimizing the risk to the public, and the special difficulties inherent in managing risks for drugs with abuse potential. Drugs with abuse liability are distinctive since the risks inherent in manufacture and distribution include not only risks to patients prescribed the medications, but also risks to the general public including subgroups in the population not intended to get the drug and who receive no medical benefit from the medication. The crafting of risk-management plans intended to protect nonpatient populations is unique for these products. The content, extent, and level of intensity of these plans affect areas of medical ethics, civil liability, and criminal prosecution. The need for risk-management plans for drugs with abuse liability can potentially act as a deterrent to investment and is a factor in decisions concerning the development of new medications for the treatments of pain, ADHD, anxiety disorders, and addictions. This paper provides a framework for moving the process of REMS development forward and criteria for evaluating the probity and adequacy of such programs.

Yacoubian GS, Jr. The coalescence of law and science in an era of school drug testing: Beyond Vernonia, Earls, and Joye. Journal of Juvenile Law 27: 1-16, 2006. (95 refs.)

Two Supreme Court decisions have upheld the constitutionality of drug testing in public schools: Vernonia School District 47J v. Acton and the Board of Education of Independent School District No. 92 of Pottawatomie County v. Earls. In Vernonia, the Court upheld the constitutionality of random drug testing for students who participate in school athletics. In Earls, the Court expanded Vernonia to include students who participate in any type of competitive extracurricular activity. Relying on the decisions in Vernonia and Earls, the Supreme Court of New Jersey upheld the constitutionality of student drug testing in Joye v. Hunterdon Central Regional High School Board of Education. Given the recent inclination by the U.S. Supreme Court and the Supreme Court of New Jersey to broaden a public school's authority to implement drug testing programs, this Article considers whether New Jersey public schools should implement a random drug testing program for all students, regardless of their involvement in extracurricular activities. A review of the juvenile delinquency and alternative drug testing technology literature suggests that such a comprehensive drug testing program is a logical next step in achieving the recognized goal of drug prevention in public schools. Part II of this essay reviews the rationales for school-based drug testing articulated in Vernonia, Earls, and Joye. Part III discusses the prevalence and associated problems of illicit drugs in the United States generally and in New Jersey specifically. Part IV presents an overview of social control theory as an explanation for juvenile delinquency. Part V discusses the evolution of oral fluid (OF) drug testing technology. Part VI argues that drug testing decisions should be influenced by a variety of outside forces, including Federally created drug use surveillance systems, the juvenile delinquency and other social science literature, and the toxicological literature.

Zellers L; Thomas MA; Ashe M. Legal risks to employers who allow smoking in the workplace. American Journal of Public Health 97(8): 1376-1382, 2007. (42 refs.)

There is mounting evidence that documents the dangers of exposure to secondhand smoke, including in the workplace. In states that permit workplace smoking employers face significant legal risks from employees who are exposed to secondhand smoke on the job. Employers have been held liable for employee exposure to secondhand smoke in numerous cases, including those based on workers' compensation, state and federal disability law, and the duty to provide a safe workplace. Given this liability risk, employers should voluntarily adopt smoke-free workplace policies. Such policies do more than fulfill an employer's legal obligation to provide a safe workplace; they also reduce the risk of litigation, potentially reduce workers' compensation premiums, and protect employees from harm.

Zeman P. Legislation and practice concerning prosecution of drug offenses in the Czech Republic. Journal of Drug Issues 37(1): 45-72, 2007. (18 refs.)

The article focuses on the history of drug laws in the Czech Republic. It traces drug legislation history in the nation from 1852 to 2005, with emphasis primarily on penal law and government responses to unlawful acts related to drugs. The recent Czech drug legislation, along with relevant court decisions and enforcement practices, are described and discussed. A discussion of several aspects of the Czech drug law, and how they have served to divert criticism for the drug policy debate, is presented.

Zwarun L. Ten years and 1 master settlement agreement later: The nature and frequency of alcohol and tobacco promotion in televised sports, 2000 through 2002. American Journal of Public Health 96(8): 1492-1497, 2006. (22 refs.)

Objectives. I sought to identify what kinds of promotion for alcohol and tobacco products are found in televised sports programming, as well as how frequently they occur. I compared my findings with data from 5 and 10 years earlier to examine the effects of the Master Settlement Agreement and detect industry trends. Method. A content analysis of more than 83 hours of televised sports programming from 2000 through 2002 was conducted. Composite week sampling was used to ensure results were representative of the overall population of television sports programs. Programs were examined for traditional advertising (commercials) and nontraditional advertising (stadium signs, announcer voiceovers, etc.). Results. Rates of certain types of alcohol advertising have decreased, but what remains is strategically chosen to increase the likelihood of audience exposure. Despite the Master Settlement Agreement, tobacco advertising remains prevalent in many sports. A new trend of placing alcohol and tobacco brand names in commercials for other products is evident. Conclusions. Alcohol and tobacco marketers appear able to cleverly adapt to advertising challenges, such as digital video recorders and legislation. Alcohol and tobacco brands remain visible on sports programming.