City Sues Over Lack of Tobacco Warnings

The city of Los Angeles has teamed up with a private law firm to sue 16 tobacco companies it claims are violating California law by not warning consumers of risks from secondhand smoke, officials announced Wednesday.

City Atty. Jim Hahn said civil penalties that could exceed $2.5 billion are being sought in the lawsuit--which also seeks to force cigarette and cigar makers to comply with Proposition 65 by giving a “clear warning” of the dangers of breathing secondhand smoke. The warnings would probably appear on TV, if the city prevails.

The Superior Court lawsuit alleges that the companies are violating the 11-year-old initiative statute, which requires businesses to give warnings if they expose individuals to chemicals that can cause cancer or birth defects.

Named as defendants are Philip Morris Inc., Consolidated Cigar Corp., Liggett Group Inc., Pinkerton Tobacco Co., Swisher International Group Inc., Brown & Williamson Tobacco Corp., Lorillard Tobacco Co., American Tobacco Co., R.J. Reynolds Tobacco Co., 800-JR Cigar Inc., General Cigar Co., Havatampa Inc., John Middleton Inc., Lane Ltd., U.S. Tobacco Co. and Cuban Cigar Factory Inc.

Tobacco industry lawyers were waiting Wednesday to examine the lawsuit. But several tobacco company spokesmen suggested that Los Angeles’ case may not get far.

“Federal law is quite clear about the warnings that have to go on cigarette advertising and packaging and we are in total compliance with federal law, which we believe takes precedence over Proposition 65,” said Seth Moskowitz, an R.J. Reynolds representative.

Hahn said secondhand smoke, also known as environmental tobacco smoke, contains as many as 46 hazardous chemicals.

He said studies by state and federal environmental officials have concluded that the smoke is responsible in California each year for as many as 2,200 children being born with below-normal birth weights, as well as 36,000 cases of lower respiratory illness in children under 18.

The lawsuit seeks penalties of $2,500 per person per day. The estimate of a potential $2.5-billion penalty assessment is based on a state study that established the number of nonsmokers exposed on a daily basis to secondhand smoke, Hahn said.

The downtown law firm of Preston Gates & Ellis will handle the case on a contingency basis--collecting up to 20% of whatever is awarded. The city does not stand to financially profit from the lawsuit; the bulk of the money would probably be earmarked for advertising on the dangers of secondhand smoke.

“There will be no cost to the city,” promised Hahn.

The nonprofit American Environmental Safety Institute, also a plaintiff in the case, additionally has alleged that 14 retail chains violate state health and safety laws by selling tobacco products without displaying specific Proposition 65 warnings.

Lawyer Roger Carrick of Preston Gates praised Hahn for being “the first prosecutor in the U.S. to take on secondhand smoke” in a lawsuit.

“We don’t know what we’ll get paid under contingency,” Carrick told reporters in Hahn’s office. “But it’s certainly great being part of this team.”

The suit, filed late Tuesday “on behalf of the people of the state of California,” raised hackles at another law firm, however.

San Francisco lawyer Eric Somers said he sent a letter of intent May 26 to Hahn and other local city attorneys and district attorneys stating that he planned to sue tobacco companies over secondhand smoke on behalf of a Lake Tahoe man if the state attorney general’s office didn’t sue under provisions of Proposition 65 before that.

“A lot of the language in their lawsuit comes verbatim out of our notice. I think it’s no coincidence. They’re taking our case,” Somers charged late Wednesday.

Carrick declined comment. But Deputy City Atty. Vince Sato denied anyone stole Somers’ case.

“We’ve been planning this since March,” Sato said. “We did not use any of their language.”

Tobacco industry representatives questioned whether the state court has jurisdiction over the issue.

Joe Helewicz, spokesman for Brown & Williamson, said, “Congress has not mandated us to put warnings on about secondhand smoke. There is no federal regulation relating to environmental tobacco smoke.”

David Baker, co-owner of San Diego-based Cuban Cigar Factory, said Proposition 65 warnings were posted at his factory and at its three retail stores after Somers sent him a copy of his May 26 notice. He said his 5-year-old company should not have been named in the lawsuit.

“We haven’t been in business long enough for [health] effects of our secondhand smoke to be felt,” Baker said.