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tobacco

Eric Garner, asphyxiated during his arrest on Staten Island, had been repeatedly picked up by the NYPD for the crime of selling loose cigarettes. Washington Examiner:

The crime of selling “loosies” was not considered a serious one in the past. Many corner stores in New York City once sold them quietly upon request. But former Mayor Michael Bloomberg’s cartoonish anti-tobacco crusade changed that and everything else. Smoking in public places was banned. Punitive taxes and a legal minimum price of $10.50 were imposed in an effort to push prices ever-upward, so that a brand-name pack of 20 cigarettes now costs as much as $14 in New York City.

As a result, the illicit sale of loose and untaxed cigarettes became more commonplace.

I noted at yesterday’s Repeal Day panel at Cato that according to figures last year, New York’s unusually high cigarette taxes had brought it an unusual distinction: an estimated 60 percent of consumption there is of smuggled or illegal cigarettes, much higher than any other state. Another way to think of it is that New York has moved closer to prohibition than to a legal market in tobacco. [earlier 2003 Cato study]

In his history of Prohibition, Last Call, Daniel Okrent cites (among many other law enforcement misadventures) the fatal shooting of Jacob Hanson, secretary of an Elks lodge in Niagara Falls, New York, in a confrontation with alcohol agents — though Hanson had a clean record and was not carrying alcohol. At the time, many saw Hanson’s death as reflecting poorly on the Prohibition regime generally. For some reason, though, Senator Rand Paul (R-Ky.) has drawn fire from some quarters for making a parallel observation about Garner’s death. [BBC; note however that while Garner's frictions with the local NYPD seem to owe much to his repeated cigarette arrests, the proximate event leading to his arrest seems to have been his attempt to break up a fight]

Yale’s Stephen Carter: “On the opening day of law school, I always counsel my first-year students never to support a law they are not willing to kill to enforce.” [Bloomberg View via Ilya Somin]

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“Fox Business Network’s John Stossel interviews US Consumer Coalition’s Brian Wise and Kat O’Connor, owner of TomKat Ammunition LLC, on the Justice Department’s Operation Choke Point.” The Gaithersburg-based ammo seller was cut off from credit card processing services and suspects that the federal Choke Point program was the reason. [cross-posted from Free State Notes; earlier on Operation Choke Point].

P.S. There are signs that House Republicans may move to rein in Operation Check Point. Let’s hope so. [USA Today/Fond du Lac Reporter; HalfWheel (cigar news and reviews)]

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Register here for the 5 p.m. Cato event. Description:

Featuring Walter Olson, Senior Fellow, Center for Constitutional Studies, Cato Institute & Editor, Overlawyered.com (@walterolson); Stacia Cosner, Deputy Director, Students for Sensible Drug Policy (@TheStacia); Michelle Minton, Fellow in Consumer Policy Studies, Competitive Enterprise Institute (@michelleminton); moderated by Kat Murti, Digital Marketing Manager, Cato Institute (@KatMurti).

On December 5, 1933, the 21st Amendment to the Constitution was ratified, supposedly ending our nation’s failed experiment with prohibitionism. Yet, 81 years later, modern-day prohibitionists continue to deny the laws of supply and demand, attempting to control what individuals can choose to put into their own bodies.

Please join the Cato Institute for a celebration of the 81st anniversary of the repeal of alcohol prohibition. Panelists will discuss modern prohibitions—from the Drug War to blue laws; tobacco regulation to transfats—drawing connections with their earlier antecedent.

Alcoholic beverages and other commonly restricted refreshments (bring on the trans fats!) will be served following the discussion.

#CatoDigital (formerly #NewMediaLunch) is a regular event series at the Cato Institute highlighting the intersection of tech, social media, and the ideas of liberty.

This event will be live-streamed and questions may be submitted via Twitter using #CatoDigital.

If you can’t make it to the Cato Institute, watch this event live online at www.cato.org/live and follow @CatoEvents on Twitter to get future event updates, live streams, and videos from the Cato Institute.

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For a lawyer to do that once might seem bad luck, to do it 588 times seems rather like carelessness. [Beck on Eleventh Circuit review of Engle tobacco cases in Florida] Excerpt:

The district court displayed the patience of Job – for a long time it tried to get the plaintiffs to do after filing, what Rule 11 requires them to do beforehand, that is, to perform basic investigation of their cases. …

The court held, with remarkable restraint, that counsel’s inability to track down its own clients before the Engel filing deadline “was at least partially a problem of its own making” because they “signed up so many clients.” …

Maybe Engle Cases is an extreme example, but the problem this litigation exemplifies – massive solicitation of would-be plaintiffs, combined with utter disregard of pre-filing obligations such as Rule 11 – is present in just about every mass tort. In Engle Cases, out of the “4500 cases” originally filed, in the end “we are dealing with 29 ? and heading to 26.” The dirty little not-so-secret of mass tort practice is that the great majority (here it looks like more than 99%) of the cases clogging up the courts would be thrown out with little or no discovery if brought individually.

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“Bowing to a forceful majority of opinion, the [Westminster, Mass.] Board of Health has killed its proposed ban on tobacco sales.” [Fitchburg Sentinel and Enterprise, AP ("This is a free country?" sign), Chris Snowdon ("The anti-smokers of Westminster... had to demand prohibition before the townspeople finally realized that they were dealing with prohibitionists"), earlier]

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Townspeople came out loudly and in force to oppose the proposed Westminster, Mass. ban on all tobacco sales, and that has thrown advocates back a bit [New York Times, MassLive, earlier]:

“They’re just taking away everyday freedoms, little by little,” said Nate Johnson, 32, an egg farmer who also works in an auto body shop, as he stood outside the store last week. “This isn’t about tobacco, it’s about control,” he said.

Right he is. And despite the Times reporter’s lifted eyebrow at the notion that “outside groups” are encouraging town officials to go forward with the ban, it’s worth asking how Westminster, Mass., population 7,400, came to have its very own “tobacco control officer.” Do you imagine the townspeople decided to create such a position with local tax funds? If so, read on.

WestminsterSealFor well over a decade the Massachusetts Municipal Association has run something called the Tobacco Control Technical Assistance Program, assisted by grant money from the state Department of Public Health. It does things like campaign for town-by-town hikes in the tobacco purchase age to 21, and town-by-town bans on tobacco sales in drug stores. It will surprise few that it has been in the thick of the Westminster situation.

This article, written for a friendly audience of public health advocates, frankly describes how the MMA project, with assistance from nonprofit and university groups as well as the state of Massachusetts, worked to break down the reluctance of town health boards to venture into restrictions on tobacco sales (scroll to “Roles of the Massachusetts Tobacco Control Program, Local Boards of Health, and Tobacco Control Advocates”);

Local boards were enticed into hiring tobacco control staff by the DPH’s tobacco control grants. As a participant in the process explained, “[L]ocal boards of health looked at it as ‘oh, it’s a grant. Let’s apply for this grant. So now, what do we have to do, now that we’ve got it?’” … The grants dictated that local boards use those community members they had hired as their staff to assist them in enacting and enforcing tobacco control regulations…

The staff paid for with money from outside the town seem to have seen their job as, in part, lobbying the local officials: “We’ve had to work on each individual board [of health] member to get them to come around,” said one.

The account continues with many revealing details of how the outside advisers managed to orchestrate public hearings to minimize critics’ voice, deflect challenges with “we’ll take that under advisement” rather than actual answers, and in the case of particularly intense opposition, “back off for a couple of months” before returning. “Grant-funded regulatory advocates were able to counter all of [opponents'] arguments and tactics.”

In other words, an extra reason for the townspeople of Westminster to be angry is that they have been paying to lobby themselves. And it’s worth knowing exactly how the game plan works, because similar ones have been rolled out to localities in various states not only on “tobacco control” but on “food policy,” environmental bans and other topics. Grass roots? If so, most carefully cultivated in high places.

Update Nov. 21: board drops plan in face of overwhelming public opposition.

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Like other high Florida awards in tobacco cases, this one, to 61-year-old Richard Boatright of Bartow, grows out of the unique framework of the Engle litigation, which did not succeed as a stand-alone case but laid the groundwork for later payouts. [AP/WFTV]

The town of Westminster, Mass. considers banning tobacco sales entirely, and the American Lung Association eggs them on [Boston Globe, AP]

P.S. David Boaz: “Does it surprise you to know that this town was founded by Puritans?”

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Details, always those pesky details: “A federal appeals court has upheld the dismissal of 750 tobacco suits, citing this major problem: The Florida law firm that brought the cases had mistakenly identified 588 dead smokers as still being alive.” [ABA Journal]

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“If we don’t get a dime, that’s OK, if we can make a difference and save some lives,” said longtime Overlawyered favorite Willie Gary, one of the lawyers representing a woman awarded $23 billion-with-a-b in punitive damages by a Florida jury for the lung cancer death of her husband, a longtime smoker. [USA Today] I’ve covered earlier stages in the long-running Florida Engle tobacco litigation, which included a $145 billion punitive damage verdict later thrown out, in articles here, here, and here, as well as Overlawyered coverage; more on Willie Gary.

More: Jacob Sullum on the illogical basis of the jury’s decision.

Mass tort roundup

by Walter Olson on July 16, 2014

  • New Hampshire lottery: after Granite State’s MTBE contamination suits pays off big, Vermont files its own [WLF Legal Pulse]
  • Supreme Court declines to review various cases arising from Florida’s Engle tobacco litigation [Lyle Denniston, SCOTUSBlog, earlier] “U.S. Supreme Court Rejects Fen-Phen Lawyers’ Appeal of $42M Kentucky Verdict” [Insurance Journal, earlier]
  • In action against five drug firms over opioid marketing, California’s Santa Clara County partners with law firms Robinson Calcagnie, Cohen Milstein, and Hagens Berman, marking at least the tenth time the county has teamed up with outside law firms to file suits [Legal NewsLine; earlier on Chicago's involvement in painkiller suit]
  • Lester Brickman on fraud in mesothelioma litigation [SSRN] “Plaintiff Lawyer Offers Inside Look At `Institutionalized Fraud’ At Asbestos Trusts” [Daniel Fisher]
  • “‘Light’ cigarette case vs Huck’s continues after 9 years; Two current judges had been plaintiff’s counsel” [Madison Record, ABA Journal]
  • “If honesty in the judicial system means anything, it means proceeding with candor before the tribunal, which plaintiffs’ counsel did not do during the removal proceedings.” [dissent in Peter Angelos Cashmere Bouquet asbestos case, Legal NewsLine]
  • Report on products liability and the driverless car [John Villasenor, Brookings, earlier]

Medical roundup

by Walter Olson on July 9, 2014

  • Congress responds to Veterans Administration health care scandal by throwing huge new sums at care [Nicole Kaeding, Chris Edwards, Cato] “Every Senior V.A. Executive Was Rated ‘Fully Successful’ or Better Over 4 Years.” [NYT via Instapundit] “VA Hospitals aren’t included on the federal government’s Hospital Compare web site” [White Coat]
  • Canadian judge quashes as vexatious suit over non-admission to medical school [Winnipeg Free Press]
  • Brain-damaged child cases: “14.5 Million Reasons Physicians Practice Defensive Medicine” [White Coat, Cleveland] “North Carolina Jury Deadlocks in John Edwards’ Malpractice Trial Against Doctor” [Insurance Journal, emergency medicine]
  • “Medical Licensing in the States: Some Room for Agreement — and Reform” [Charles Hughes, Cato]
  • “NY Launches Statewide Med Mal Settlement Program” [NYDN via TortsProf]
  • “Unlucky Strike: Private Health and the Science, Law and Politics of Smoking” [John Steddon and David Boaz, Cato program] Here’s the long-awaited segue to complete prohibition: British Medical Association recommends banning tobacco permanently for persons born after 2000 [WaPo]
  • Sneaky: California ballot language undoing MICRA liability limits “buried in an initiative titled The Troy and Alana Pack Patient Safety Act of 2014.” [Yul Ejnes, KevinMD]

Paternalism roundup

by Walter Olson on May 19, 2014

  • “Go to Heaven, Bloomberg: The meddling ex-mayor thinks he is on a mission from God.” [Sullum] “De Blasio to resurrect attempt at NYC big soda ban” [Eric Boehm, Watchdog.org]
  • The CDC connection: much of Bloomberg’s crew of public health officials has moved into the Obama administration, and has big plans [Jeff Stier]
  • “The public health approach rejects the idea that there is such a thing as unfettered free will” — here’s Bloomberg paternalism boiled down nicely for you [Larry Gostin, Hastings Center Report via Scott Burris, Bill of Health (regretting "mass delusion of autonomy")]
  • Centers for Disease Control (CDC): if skeptical media call, tell ‘em you’re not around [Zenon Evans]
  • For her own good: “89-Year-Old Kicked Out of HUD Housing for Smoking Cigarettes” [Elizabeth N. Brown]
  • “Longer Pub Hours, Fewer Car Accidents in England and Wales” [James Schneider, Econlib]
  • Sally Satel on the benefits of e-cigarettes [AEI Ideas video] “The FDA Says E-Cigarettes Are Less Harmful Than Smoking” [Jason Koebler, Vice Motherboard]

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Jacob Grier has an analysis, and predicts a regulatory snarl for e-cigarettes based on a poorly written statute, cartel profits for major cigarette makers, bad news for cigar and pipe smokers, and wider black markets.

“Who Needs Legislation? Dems Want To Extend Tobacco Settlement To E-Cigarettes” [Daniel Fisher, Forbes] “E-cigarettes are bad because they look like cigarettes. E-hookahs are worse because they don’t.” [Jacob Sullum; more from Sullum on the unanimous vote by the Los Angeles city council to ban vaping in public places]

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Maryland roundup

by Walter Olson on March 8, 2014

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Socialism_Inspectors
I’ve been blogging about a different political poster each day this week at Cato:

* Monday, “Socialism Would Mean Inspectors All Round,” 1929 British Conservative Party poster;

* Tuesday, “Come on, Dad! We’re going to vote Liberal,” 1929 British Liberal Party poster;

* Wednesday, “I Need Smokes,” World War One American poster;

* Thursday, Art Deco Prohibitionist traffic safety poster.

Update: and here’s Friday’s final installment, a contemporary freedom-of-the-press poster from Jordan.

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Nanny state roundup

by Walter Olson on February 12, 2014

  • Sock puppets: U.K. and E.U. governments both fund public advocacy campaigns on paternalism themes, effectively lobbying themselves at taxpayer expense. Sounds kinda familiar [Christopher Snowdon on Institute for Economic Affairs studies]
  • Federal government, in the form of the CDC, wishes your doctor would nag you more about your drinking [Jacob Sullum, more]
  • “$10m look into games and gun violence a bust” [Rob Beschizza; Mike Rose, Gamasutra; related, Scott Shackford]
  • Assumption of risk won a round at the California Supreme Court a year ago in a case on amusement park bumper cars [S.F. Chronicle, ABA Journal, related on Disneyland teacups] J.D. Tuccille on motorcycle risks [Reason]
  • As a country Australia is known for freedom, so why’s it a leader in enacting bans? [Vivienne Crompton, IPA "Freedom Watch"]
  • “Maine’s unwise and unconstitutional ban on disclosing the alcohol content of beers” [Jonathan Adler]
  • FDA mandate on removal of nicotine could benefit head regulator’s former client [Jacob Grier] Glaxo SmithKline, Johnson & Johnson also push bans on e-cigarettes, which compete with their nicotine therapies [Tim Carney] AGs from 24 states (AL, AZ, CA, CO, CT, DE, HI, ID, IL, IN, IA, ME, MD, MS, MT, NH, NM, NY, OH, OR, PA, RI, VT, WA) write FDA urging ban on menthol in cigarettes [CSPNet] “Cigarette Sin-Tax Hike Could Boost Black Markets” [Steven Greenhut] Brendan O’Neill on secondhand smoke [Reason]