Huge Loss for Big Tobacco as FDA Calls for Graphic Warning Labels

There’s no doubt that tobacco is a booming business – and products liability issues have no qualms about riding in on the coattails of success. Many consumers’ complaints stem from the assertion that tobacco companies knew about and concealed the risks associated with smoking, and it certainly has been a quarter of a century since the U.S. has seen a significant change to its cigarette packs. The most recent alteration was in the 1980s and mandated a warning label – a small box with black and white text that could easily be overlooked.

Now, says the Associated Press, the Food and Drug Administration has released nine new warning labels that depict “in graphic detail the negative effects of tobacco use” and are sure to make the average consumer take a second look. Among the photos are: the corpse of a smoker, diseased lungs, teeth and gums and a mother holding her baby with smoke swirling around them. The accompanying phrases will serve to highlight the long-term effects of tobacco use, as will the inclusion of the number to a national quitting hotline. The graphic warning labels were required in a 2009 law that gave the federal government authority to regulate tobacco for the first time in our nation’s history, and advocates against smoking, like the American Cancer Society, hope that it will effectively deter non-smokers from picking up the habit. It may have some major implications for personal injury litigation as well.

An experienced plaintiff’s products liability lawyer knows that tobacco lawsuits are already very complex and difficult to litigate. For example, claims for personal injuries resulting from the use of tobacco products that relate to promotional or advertising communications or the adequacy of warnings are subject to the federal Cigarette Labeling and Advertising Act and must be brought under that Act rather than under comparable state law. Even more importantly, assumption of risk has long been a choice defense for tobacco companies and now that the warning on the pack is being made more prominent, it may become even more difficult to litigate such cases – especially when juries feel there were stronger contributing factors to the plaintiff’s illness or are convinced that the plaintiff was made aware of the risks of smoking and chose to accept those risks.

Still, anyone harmed by tobacco products should not shy away from contacting an attorney about the legal rights and remedies available. These cases are very difficult and persons who pursue them should understand that they come with a great deal of risk. The defendants are unlikely to settle the case which will need to go to trial. In addition, parties should expect an appeal at the end of the trial. These factors should not necessarily deter persons from pursuing a case, but persons simply need to go into the litigation with their eyes wide open. Plaintiffs have been successful in pursuing these cases and, of course, the attorney generals of various states also were able to obtain substantial relief from the tobacco manufacturers.

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