Wolpin v. Philip Morris, Inc., et al.

A nonsmoker filed suit, alleging that she suffers from severe emphysema and an array of other injuries as a result of prolonged exposure to secondhand tobacco smoke from the Defendants’ products.  The suit contains counts alleging several bases for liability, including negligence, strict liability and civil conspiracy.  The Defendants filed a motion to dismiss, arguing that the Federal Cigarette Labeling and Advertising Act (FCLAA) pre-empts claims based on state law duties to disseminate information relating to smoking and health.  The Court (King, J.) denied the motion, concluding that the FCLAA’s pre-emption of state regulations “based on smoking and health” does not pre-empt regulations involving secondhand smoke.  “The Court finds it unlikely that Congress intended the word ‘smoking’ to mean inhaling second-hand smoke” since the “Congressional reports make clear that the purpose of the FCLAA is not to inform non-smokers of the hazards of breathing second-hand smoke but rather to inform smokers and potential smokers of the dangers of actively smoking.”  The Court also ruled that the act did not impliedly pre-empt a claim based on harm from secondhand tobacco smoke.  See Klasing, H., “Federal Law Does Not Preempt Failure to Warn Claims by Nonsmokers: Why Big Tobacco May Get Burned,” 24 Dayton Law Review 119 (1998).  The case was subsequently dismissed.

Wolpin v. Philip Morris, Inc., et al., 974 F. Supp. 1465, 12.6 TPLR 2.365, 1997 U.S. Dist. LEXIS 12915, 1997 WL 535218 (S.D. Fla.), No. 96-1781-CIV-KING.