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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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