Fire Safe Cigarettes From Legislation to Litigation

1. 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 (410)706-1294 phone; (410)706-1128 fax kdachille@law.umaryland.edu

2. 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 York’s 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.”

3. 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.”

4. And the Board . . . “Recommends a vote AGAINST this proposal. “

5. 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).

6. 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).

7. 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 Moakley’s district, killing a young couple and their five children. 1979

8. 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.

9. 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).

10. TSG Conclusion 1987(Do the math—19 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?

11. 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.

12. 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.”

13. “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 . . .

14. Isn’t it Ironic? . . . The TSG findings that would come almost a decade later in 1987.

15. Project Hamlet“To 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 . . .

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

17. Other States’ Response California Illinois Massachusetts New Hampshire Vermont Have passed laws adopting the New York standard.

18. 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.

19. 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.

20. 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 products—ability to eliminate danger without seriously impairing usefulness of product; • Obviousness of danger; and • Avoidability of danger.

21. Usefulness and Desirability of the Product Do I need to say anything?

22. 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 fire—25% of fire deaths each year are in cigarette-caused fires.

23. 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.

24. 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.

25. Obviousness of Danger Falling asleep while smoking or carelessly discarding a lit cigarette . . . One perspective: “[T]he potential for a cigarette to ignite fabric and start fires is well known and part of the community’s common knowledge.” Sacks v. Philip Morris, 1996 WL 780311 (D. Md. 1996), at *6.

26. 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?

27. 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?

28. 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.

29. 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.

30. Smattering of Cases Sacks v. Philip Morris, 1996 WL780311 (D. Md. 1996): Plaintiff’s 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 plaintiff’s claim.

31. 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.”

32. 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.”

33. Smattering of Cases Griesenbeck v. American Tobacco Co., 897 F. Supp. 815 (D. N.J. 1995): Plaintiff’s parents and brother killed in cigarette-caused fire; rejecting plaintiff’s 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.”

34. 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."

35. 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)

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

37. 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.

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