CAI Submits Amicus Curiae Brief to U.S. Supreme Court, Urging Consideration of Daniels et al. v. Philip Morris, et al.

View CPIL/CAI Amicus Curiae Brief

On December 28, 2007, the Center for Public Interest Law (CPIL) and Children's Advocacy Institute (CAI) of the University of San Diego School of Law filed an amicus curiae brief with the U.S. Supreme Court, urging the Court to grant the Petition for Writ of Certiorari in the matter of Daniels, et al. v. Philip Morris, et al.

The California Supreme Court's decision in Daniels held that the basic state statute used by private litigants and public prosecutors to control marketing abuses by corporations did not apply to tobacco advertising that targeted children. The stated basis for this improvident decision was a U.S. Supreme Court case (Lorillard), decided in 2001. That U.S. Supreme Court case cited the Federal Cigarette Labeling Act as substantially occupying the field of health and safety regulation of cigarettes, and cited commercial free speech concerns. Specifically, that precedent struck several Massachusetts advertising restrictions (e.g., the placement of ads at a low height where children might more easily see them) because of a lack of nexus between the commercial free speech impingement involved and actual effect on minors smoking. But in contrast, the Daniels case involves the alleged deliberate marketing of cigarettes to minors – with the intent and effect of accomplishing youth addiction. And the health and safety underpinnings of the federal Labeling Act focus on the respiratory and other health dangers of smoking, requiring the now common Surgeon General warning about danger to health. The federal Act did not address addiction issues, nor sales to minors, and the state has a legitimate interest in preventing the marketing of an addictive substance to her children. The Daniels opinion cites the deleterious health and safety effects of smoking as a shield for tobacco – accomplishing its immunity from marketing abuses – even those going beyond health and safety. (The Court regrettably held that health underlies state restrictions on sales to minors – implying federal preemption of any state control of such sales.) And, contrary to the Daniels court holding, the commercial free speech rights of tobacco should not apply where there is a clear nexus to the “compelling state interest” of child addiction prevention.

The fact that the trial court, the Fourth District Court of Appeal, and the California Supreme Court (and without dissent) all got this case so wrong, and because it placed a preclusive barrier between marketing abuse enforcement to protect children and the seminal unfair competition state statutes that accomplish that enforcement, CAI and CPIL felt compelled to file an amici brief urging the U.S. Supreme Court to grant certiorari and decide the matter. The CPIL/CAI brief also pointed out that the First Circuit Court of Appeal in the Good case two years ago decided the preclusive effect of Lorillard very differently – holding that the deceptive marketing of “light” cigarettes by tobacco could be subject to state unfair competition control. The Daniels and Good holdings create a conflict appropriate for Court clarification.

Although certiorari is rarely granted, the implications to state regulation of corporate marketing abuses, and to the protection of children from addictive product marketing, warranted contribution by CPIL/CAI.

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