Tobacco Preemption Ruling to Get Full 11th Cir. Look

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By Steven M. Sellers

Jan. 25 — Whether Florida case law stemming from a decertified class suit creates a “flat ban” on cigarettes in conflict with federal legislation will be taken up by the entire Eleventh Circuit.

The full U.S. Court of Appeals for the Eleventh Circuit voted Jan. 21 to rehear a panel decision in a so-called Engle-progency case that rejected a jury verdict for a smoker's negligence and strict liability claims against tobacco companies.

The two-sentence order granted a petition for rehearing en banc by plaintiff Earl Graham.

Graham argued, with the support of health and consumer advocacy groups, that the panel decision was wrong and paved the way for other federally-regulated industries to avoid liability for misconduct under the cloak of federal preemption (43 PSLR 627, 5/18/15).

The “flat ban” on cigarettes created by plaintiffs' verdicts stemming from Engle v. Liggett Grp., Inc., 945 So. 2d 1246 (Fla. 2006), conflicts with the Federal Cigarette Labeling and Advertising Act and subsequent legislation, the panel said. It observed that Congress hadn't erected any such ban in federal tobacco laws.

The verdicts in the Engle-progeny cases, which apply certain findings from a decertified 2006 Florida class suit on the dangers of tobacco, amount to a conclusion that all cigarettes are inherently defective, the three–judge panel ruled in April 2015.

Federal Preemption or Not?

Florida may ordinarily enforce duties on cigarette manufacturers to protect the health and safety of its citizens, but the state's power has limits, the panel ruled.

“But it may not enforce a duty, as it has through the Engle jury findings, premised on the theory that all cigarettes are inherently defective and that every cigarette sale is an inherently negligent act,” the panel said.

Health and consumer advocacy groups cried foul, and rallied behind Graham's petition for en banc rehearing of the appeal.

The groups contended in amicus curiae briefs that the decision found preemption unintended by Congress, and also erected a “sweeping interpretation” of federal preemption that may include state and local regulation of pesticides, chemicals, weapons and other commodities.

Those arguments may have resonated with a majority of the Eleventh Circuit, who voted in favor of rehearing the appeal before the entire court.

Further briefing and oral argument in the case hasn't yet been scheduled.

To contact the reporter on this story: Steven M. Sellers in Washington at

To contact the editor responsible for this story: Steven Patrick at

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