Fire Safe Cigarettes From Legislation to Litigation

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Fire Safe CigarettesFrom Legislation to
Litigation

• Kathleen Hoke Dachille
• Center for Tobacco Regulation
• University of Maryland School of Law
• 500 West Baltimore Street
• Baltimore, Maryland 21201
• [phone] phone [phone] fax
• kdachille_at_law.umaryland.edu

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Did you know?

• In April 2006, Altria Stockholder Proposals
  included
• RESOLVED That the Altria Board commit the
  Company within six months of the annual meeting
  to voluntarily establish New Yorks cigarette
  fire safety regulatory criteria as the standard
  for all the cigarettes that are produced for sale
  throughout the world, unless local legislation
  prohibits this.

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And they added . . .

• We have the technology to drastically reduce
  cigarette-caused fire deaths. We already make
  a product which, while legal, if used as directed
  causes death. To be complicit in more deaths due
  to an unwillingness to change our technology
  makes us complicit in their deaths.

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And the Board . . .

• Recommends a vote AGAINST this proposal.

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Fire Safe v. Fire Safer v. Reduced Ignition
Propensity (RIP) v. Self Extinguishing

• A cigarette that fails to achieve a full length
  burn when not actively smoked
• Test method established by the American Society
  for Testing and Materials ASTM E2187-04
  (Standard Test Method for Measuring the Ignition
  Strength of Cigarettes).

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Technology

• Many approaches to meeting the standard have been
  considered
• Reduced circumference of cylinder
• Reduced levels of citrate in tobacco
• Density of tobacco
• 3M chemical granules . . .
• Most common
• Paper banding (speed bumps).

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Legislative History

• Really old history . . .
• 1929 Rep. Rogers asks Bureau of Standards to
  create a self-extinguishing cigarette
• 1974 Sen. Hart proposes mandating a fire-safety
  standard for cigarettes
• And then there was a fire in Congressman
  Moakleys district, killing a young couple and
  their five children.
• 1979

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Legislative HistoryNot So Old

• 1979 Moakley introduces bill to require Consumer
  Product Safety Commission to regulate cigarettes
  as a fire hazard.
• 1984 Compromise legislation passed creating
  Technical Study Group (TSG) to determine
  feasibility of a cigarette fire safety standard.

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Work of the TSG

• TSG comprised of 15 members, from government,
  community, fire safety, and tobacco industry.
  Unanimous agreement to release . . .
• 1987 Toward a Less Fire-prone Cigarette Final
  Report of the Technical Study Group on Cigarette
  and Little Cigar Safety, U.S. Consumer Product
  Safety Commission (October 1987).

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TSG Conclusion 1987(Do the math19 years ago.)

• It is technically and economically feasible to
  produce a cigarette with a significantly reduced
  propensity for igniting upholstered furniture
  fires.
• Next question . . .
• What is the standard?
• How do we test cigarettes?

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Federal Response to TSG Report

• More of the same . . .
• Passed bill in 1990 to create the Technical
  Advisory Group (TAG) to determine standard and
  create test method.
• 1993 TAG proposed two tests (Mock-Up and
  Extinction) tobacco companies reject findings
  and Congress goes silent on the issue.

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Industry History

• 1977 Philip Morris memorandum Self-Extinguishing
  Cigarette (January 6, 1977 Bates No.
  2020186850-6853)
• The question then is how might a
  self-extinguishing cigarette, that could be sold
  commercially, be developed. This does not appear
  to be an impossible task. . . . I believe that a
  reasonable commercially acceptable candidate
  could be developed in approximately one year
  given a modest priority.

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Industry History

• RJ Reynolds ramped up testing in the late 1970s,
  leading to a memorandum in 1979 that listed five
  potential approaches to creating fire safe
  cigarettes.
• RJ Reynolds, Modification of the Burn Rate of the
  Unpuffed Cigarette (September 10, 1979 Bates No.
  508511155-1156).
• Those findings matched almost exactly . . .

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Isnt it Ironic?

• . . . The TSG findings that would come almost a
  decade later in 1987.

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Project HamletTo burn or not to burn

• PM launched Project Hamlet in 1980 to create a
  marketable fire safe cigarette.
• 1985 Prototype created and subject to
  substantial testing.
• 2000 Merit Paper Select hits the market almost
  exactly like 1985 prototype.
• That same year . . .

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New York

• 2000 State of New York passed a law requiring the
  States Fire Prevention Commission to establish a
  cigarette fire safety standard.
• 2004 Regulations went into effect.

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Other States Response

• California
• Illinois
• Massachusetts
• New Hampshire
• Vermont
• Have passed laws adopting the New York standard.

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What about litigation as tool to push legislation
or voluntary compliance?

• Theory Product Liability
• One engaged in the business of selling . . .
  products who sells . . . a defective product is
  subject to liability for harm to persons or
  property harmed by the defect.
• Restatement (Third) of Torts, Product Liability.

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Consumer Expectations TestDifficult to Meet

• Plaintiff would be required to prove that the
  product is defective beyond what would be
  expected by a reasonable consumer.
• Because cigarettes are lit with a fire source and
  continue to burn, it would be difficult to prove
  that a reasonable person would not expect an
  unattended cigarette near a vulnerable fabric to
  cause a fire.

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Risk-Utility TestBetter chance of success . . .

• This test considers several factors to determine
  if the product is defective, including
• Usefulness and desirability of the product
• Likelihood of injury and its probable
  seriousness
• Availability of safer productsability to
  eliminate danger without seriously impairing
  usefulness of product
• Obviousness of danger and
• Avoidability of danger.

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Usefulness and Desirability of the Product

• Do I need to say anything?

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Likelihood of injury and its probable seriousness

• More than 37,000 smoking-related fires in
  structures and vehicles in U.S. in 2001.
• Approximately 800 cigarette-caused fire deaths
  annually in the U.S.
• Approximately 1700 cigarette-caused fire injuries
  in U.S. annually.
• Cigarette-caused fires are the most deadly type
  of residential fire25 of fire deaths each year
  are in cigarette-caused fires.

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Likelihood of injury and its probable seriousness

• There is a correlation between smoking-related
  fire and smoker inebriation.
• Most victims are asleep when they are fatally
  injured.
• Elderly, disabled and children are
  disproportionately represented as victims.

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Availability of Safer Products(and ability to
eliminate danger without seriously impairing
usefulness of product)

• Use of federal legislative history tobacco
  industry history (in their own words through
  their own documents including marketing of Paper
  Select) capped off by the fact that such
  products are being or will be sold in six states
  (and Canada).
• Harvard School of Public Health Preliminary
  Report (January 2005) on cigarettes sold in NY
  showed
• No change in toxicity
• No change in price
• No change in sales/tax revenues
• More than 500 brands of cigarettes certified in
  NY.
• This element likely can be established.

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Obviousness of Danger

• Falling asleep while smoking or carelessly
  discarding a lit cigarette . . .
• One perspective
• The potential for a cigarette to ignite fabric
  and start fires is well known and part of the
  communitys common knowledge.
• Sacks v. Philip Morris, 1996 WL 780311 (D. Md.
  1996), at 6.

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Obviousness of Danger

• But does the fact that now some cigarettes meet
  certain fire safety standards diminish this
  understanding and therefore reduce the
  obviousness of the danger?
• And since obviousness is only one factor and
  other factors can be proven readily, is there a
  state court willing to skip over or minimize the
  obviousness prong of the test?

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Avoidability of Danger

• Is the danger avoidable if the danger is, in
  part, due to inebriation and/or carelessness that
  manufacturer must and should assume will occur
  with use of this product?

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The ONE Settlement

• 2003 Moore/Shipman case PM paid 2 million to a
  plaintiff-child who was severely burned and
  rendered disabled after her mother
  unintentionally left a cigarette on a car seat
  and left the child unattended in the car a fire
  ensued and the child was gravely injured.
• Note This was against PM after they started
  manufacturing Paper Select.
• Much was made of this at the time . . .
• But the onslaught of cases never
• materialized as predicted.

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Roadmap to a Best Case

• Victim Not the smoker.
• Causation Make sure that fire officials are
  firm in their determination of cause of fire.
• Defendant Solid evidence that defendants
  cigarette brand was cause of fire.
• Gather and evaluate legislative history and
  tobacco company documents.
• Court Shop for a forum in which risk-utility
  has been used for some time and with a
  flexibility that will allow you to minimize
  obviousness prong.

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Smattering of Cases

• Sacks v. Philip Morris, 1996 WL780311 (D. Md.
  1996)
• Plaintiffs decedents died in fire caused by
  cigarette plaintiff acknowledged decedents
  carelessness court applied risk-utility and
  found obviousness of danger so strong as to
  eliminate plaintiffs claim.

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Smattering of Cases

• Lamke v. Futorian Corporation, 709 P.2d 684 (Ok.
  1985)
• Plaintiff injured when cigarette discarded on
  sofa started fire sued sofa manufacturer and PM
  court applies consumer expectation test and finds
  for defendants
• In this case, the defect alleged is the
  failure to minimize an obvious danger which is
  inherent in the product itself. In order for a
  cigarette to be used, it must burn.

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Smattering of Cases

• Kearney v. Philip Morris, 916 F. Supp. 61 (D.
  Mass. 1996)
• Mother brought action after death of her daughter
  and grandchildren in house fire caused by PM
  cigarette court refused to expand product
  liability jurisprudence to injuries resulting
  from common, everyday products whose obvious
  dangers are known to be associated with use of
  the product.

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Smattering of Cases

• Griesenbeck v. American Tobacco Co., 897 F. Supp.
  815 (D. N.J. 1995)
• Plaintiffs parents and brother killed in
  cigarette-caused fire rejecting plaintiffs
  claims under consumer expectations standard
• It can hardly be disputed that adults of legal
  smoking age . . . Know that cigarettes must burn
  to be smoked. Nor can an adult claim to be
  ignorant of the dangers associated with burning
  items such as cigarettes.

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Smattering of Cases

• Frulla v. Phillip Morris, Inc., No. 87-2660 (W.D.
  Tenn., Jan. 10, 1990)
• A lit cigarette's ability to start a fire,
  particularly if left unattended, is well known
  and part of the community's common knowledge."

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Sources

• M. Gunja, et al., The case for fire safe
  cigarettes made through industry documents,
  Tobacco Control, 11 346-53 (2002).
• M. Gunja, Fire Safe Cigarettes, 40 Harv. J. on
  Legis. 559 (2003).
• L. Grisham, Elements of the Cigarette-Caused Fire
  Case, Trial at 2 (November 2003) (Grisham
  represented Moore/Shipman)

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Sources

• McGuire and R. Daynard, When Cigarettes Start
  Fires Industry Liability, Trial at 45 (November
  1992).
• Facts About the Tobacco Industrys Arguments
  Against Laws Regulating the Ignition Strength of
  Cigarettes, National Association of State Fire
  Marshals (March 2005).

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Sources

• Fire Safer Cigarettes The Effect of the New
  York State Cigarette Fire Safety Standard on
  Ignition Propensity, Smoke Toxicity and the
  Consumer Market A Preliminary Report, Harvard
  School of Public Health (January 2005).
• Tobacco Giant, in a Shift, Pays Victim, L.A.
  Times, October 2, 2003, Section A.

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Resources

• National Coalition for Fire Safe Cigarettes
• www.firesafecigarettes.org
• National Fire Protection Association
• www.nfpa.org