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Ask the Lawyer: What are the basics on suing tobacco companies?

Q Just what is the main theory against the tobacco companies now since it’s so well-known that smoking can cause harm?

— S.F., Wilmington

A Lawsuits against the tobacco companies date back more than 50 years, but allegations have changed as more information has come forward. Early reports linking cigarettes to cancer are found in the 1950s. Legal theories included product liability, negligent advertising and negligent manufacture. In the 1980s, in the landmark case of Cipollone v. Liggett, the plaintiff and her family alleged that cigarette manufacturers knew smoking caused lung cancer and was addictive, but did not warn consumers. Rose Cipollone’s husband was successful at trial, but the case was reversed on appeal. At that point, the tobacco companies were doing well in defending themselves.

In the 1990s, some plaintiffs began having at least limited success. Among other things, documents were leaked showing some cigarette companies were aware of tobacco’s addictive nature. Then, in February 2000, a California jury found against Philip Morris to the tune of $51.5 million in a case involving a smoker who had inoperable lung cancer. About the same time, more than 40 states sued the tobacco companies under consumer protection and antitrust laws.

More recently, decisions have at least opened the door for class actions. And individual lawsuits face arguably less difficult challenges given the increased awareness of the dangers of smoking. But tobacco litigation often involves complex legal theories, detailed scientific analysis and tenacious defense counsel. Claims may include failure to warn, fraud, negligence and product liability.

Q I see where the family of Tony Gwynn, the great San Diego Padres baseball player, has sued the tobacco industry for wrongful death. They contend his salivary gland cancer was associated with his many years of using smokeless tobacco. A bunch of players still seem to use the stuff. Is there any warning that has to be put on it?

— W.A., Redondo Beach

A Examples of smokeless tobacco are chewing tobacco, moist snuff and snuf. Under the federal Family Smoking Prevention and Tobacco Act, the package and advertisement must include one of the following warnings:

• This product can cause mouth cancer

• This product can cause gum disease and tooth loss

• This product is not a safe alternative to cigarettes

• Smokeless tobacco is addictive

Packages of smokeless tobacco must have the warning on the two principal sides, and cover at least 30 percent of each side. As to advertisements, the warning has to cover at least 20 percent of the area of the ad. These warning labels were required beginning in June 2010.

As to Tony Gwynn, I don’t know enough of the facts at this point, but his use of smokeless tobacco well preceded June 2010, when the act’s warnings became required.

Ron Sokol is a Manhattan Beach attorney with more than 30 years of experience. His column appears on Wednesdays. Email questions and comments to him at or write to him at Ask the Lawyer, Daily Breeze, 21250 Hawthorne Blvd., Suite 170, Torrance, CA 90503.

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