Hite v. R.J. Reynolds Tobacco Co.

• Decision Date: 12 July 1990
• Citation: 396 Pa.Super. 82,578 A.2d 417
• Parties: , Prod.Liab.Rep. (CCH) P 12,535 Margaret W. HITE, Executrix of the Estate of Robert V. Hite, Deceased, Appellant, v. R.J. REYNOLDS TOBACCO COMPANY, Phillip Morris, Inc., the American Tobacco Company, McKeesport Candy Company and B. Lipsitz Company, Appellees.
• Court: Pennsylvania Superior Court

Page 417

578 A.2d 417

396 Pa.Super. 82, Prod.Liab.Rep. (CCH) P 12,535

Margaret W. HITE, Executrix of the Estate of Robert V. Hite Deceased, Appellant, v. R.J. REYNOLDS TOBACCO COMPANY, Phillip Morris, Inc., the American Tobacco Company, McKeesport Candy Company and B. Lipsitz Company, Appellees.

Superior Court of Pennsylvania.

Argued Nov. 15, 1989.

Filed July 12, 1990.

Ellen M. Viakley, Pittsburgh, for appellant.

Edward F. Mannino, Philadelphia, for American Tobacco, appellees.

Before ROWLEY, WIEAND and HOFFMAN, JJ.

WIEAND, Judge:

The issue of first impression before the Court in this appeal is whether state tort remedies for injury or death caused by cigarette smoking have been preempted by the Federal Cigarette Labeling and Advertising Act ¹ which became effective January 1, 1966.

Robert Hite, a pharmacist, died on May 29, 1985, at the age of fifty. The cause of death was lung cancer brought on by cigarette smoking. Margaret W. Hite, the widow of the decedent and administratrix of his estate, commenced wrongful death and survival actions against R.J. Reynolds Tobacco Company, Phillip Morris, Inc. and The American Tobacco Company, the manufacturers of cigarettes smoked by the decedent between 1950 and the date of his death. The complaint contained averments that the defendant tobacco companies had been negligent or were strictly liable because of defectively designed products and/or a failure to warn of the dangers of cigarette smoking. The trial court held, however, that the claim had been preempted, effective January 1, 1966, by the Federal Cigarette Labeling and Advertising Act. Because the decedent had not started smoking cigarettes manufactured by American Tobacco Company until sometime in 1970, therefore, the trial court entered judgment on the pleadings in favor of American Tobacco Company. ² The present appeal is from the order entering judgment on the pleadings in favor of The American Tobacco Company.

The standard for reviewing a judgment on the pleadings was set forth in Klebach v. Mellon Bank, N.A., 388 Pa.Super. 203, 565 A.2d 448 (1989), as follows:

Our scope of review is plenary when reviewing a trial court's decision to grant judgment on the pleadings. Keystone Automated Equipment v. Reliance Insurance Co., 369 Pa.Super. 472, 475, 535 A.2d 648, 649 (1988), allocatur den., 519 Pa. 654, 546 A.2d 59 (1988). Our appellate role is to determine if the action of the trial court was based on a clear error of law or whether there were facts disclosed by the pleadings which should properly go to the jury. Id.; Vogel v. Berkley, 354 Pa.Super. 291, 296, 511 A.2d 878, 880 (1986). An appellate court must confine its consideration to the pleadings and relevant documents, accept as true all well pleaded statements of fact by the party against whom judgment was granted, and consider only those facts that the party against whom judgment was granted specifically admits. Keystone Automated Equipment, supra 369 Pa.Super. at 475, 535 A.2d at 649. However, we may not consider conclusions of law or unjustified inferences asserted by either party. Jones v. Travelers Insurance Company, 356 Pa.Super. 213, 216, 514 A.2d 576, 578 (1986), allocatur den., Jan. 15, 1987. Judgment on the pleadings may only be granted where no material facts are in dispute and the case is so free from doubt that a trial would clearly be a fruitless exercise. Keystone Automated Equipment, supra 369 Pa.Super. at 475, 535 A.2d at 649.

Id. 388 Pa.Super. at 204, 565 A.2d at 449. See also: Groff v. Pete Kingsley Bldg., Inc., 374 Pa.Super. 377, 382, 543 A.2d 128, 130 (1988).

The policy of the Congress and the purpose of the Federal Cigarette Labeling and Advertising Act is to

establish a comprehensive Federal program to deal with cigarette labeling and advertising with respect to any relationship between smoking and health, whereby--

(1) the public may be adequately informed that cigarette smoking may be hazardous to health by inclusion of a warning to that effect on each package of cigarettes; and

(2) commerce and the national economy may be (A) protected to the maximum extent consistent with this declared policy and (B) not impeded by diverse, nonuniform, and confusing cigarette labeling and advertising regulations with respect to any relationship between smoking and health.

15 U.S.C. § 1331 (1982).

The Act also preempts state law pertaining to the duty to warn required of cigarette manufacturers and proscribes the imposition of additional notice requirements by the states. ³ The Act provides:

(a) No statement relating to smoking and health, other than the statement required by section 1333 of this title, shall be required on any cigarette package.

(b) No requirement or prohibition based on smoking and health shall be imposed under State law with respect to the advertising or promotion of any cigarettes the packages of which are labeled in conformity with the provisions of this chapter.

15 U.S.C. § 1334 (1982).

In Cipollone v. Liggett Group, Inc., 789 F.2d 181 (3d Cir.1986), cert. denied, 479 U.S. 1043, 107 S.Ct. 907, 93 L.Ed.2d 857 (1987), the Court of Appeals for the Third Circuit analyzed the preemptive effect of the Labeling Act on state tort claims and concluded that "claims relating to smoking and health that result in liability for noncompliance with warning, advertisement, and promotion obligations other than those prescribed in the Act have the effect of tipping the Act's balance of purposes and therefore actually conflict with the Act." Id. at 187. The Court reasoned that the statement of the Act's purposes represented a

carefully drawn balance between the purposes of warning the public of the hazards of cigarette smoking and protecting the interests of national economy. See [Banzhaf v. F.C.C., 405 F.2d 1082, 1090 (D.C.Cir.1968) ]. Moreover, the preemption provision of section 1334, read together with section 1331, makes clear Congress's determination that this balance would be upset by either a requirement of a warning other than that prescribed in section 1333 or a requirement or prohibition based on smoking and health "with respect to the advertising or promotion" of cigarettes. See 15 U.S.C. § 1334.

Id. at 187. Further, the Court said, "duties imposed through state common law damage actions have the effect of requirements that are capable of creating 'an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.' " Id., quoting Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 404, 85 L.Ed. 581, 587 (1941). Therefore, the Court concluded

[T]he Act preempts those state law damage actions relating to smoking and health that challenge either the adequacy of the warning on cigarette packages or the propriety of a party's actions with respect to the advertising and promotion of cigarettes. [W]here the success of a state law damage claim necessarily depends on the assertion that a party bore the duty to provide a warning to consumers in addition to the warning Congress has required on cigarette packages, such claims are preempted as conflicting with the Act.

Id. at 187 (footnote omitted). The reasoning of Cipollone is compelling. ⁴ See also: Gunsales v. Celotex Corp., 674 F.Supp. 1149 (E.D.Pa.1987) (claims based upon failure to warn of dangers of smoking preempted following effective date of Labeling Act).

Other courts have reached the same conclusion. See: Pennington v. Vistron Corp., 876 F.2d 414 (5th Cir.1989) (Labeling Act impliedly preempts post 1965 claims challenging adequacy of warnings on cigarette packages, or suggesting duty on tobacco companies to provide warnings in addition to warning mandated by Congress, or questioning propriety of tobacco companies' advertising or promotional activities); Roysdon v. R.J. Reynolds Tobacco Co., 849 F.2d 230 (6th Cir.1988) (Labeling Act impliedly preempts state law failure to warn claims); Stephen v. American Brands, Inc., 825 F.2d 312 (11th Cir.1987) (Labeling Act preempts claim of failure to provide adequate warning of risks associated with smoking); Palmer v. Liggett Group, Inc., 825 F.2d 620 (1st Cir.1987) (Labeling Act impliedly preempts state law smoking and health related claims challenging adequacy of Federal warning or propriety of promotion or advertising); Kotler v. American Tobacco Co., 685 F.Supp. 15 (D.Mass.1988) (same); Gianitsis v. American Brands, Inc., 685 F.Supp. 853 (D.N.H.1988) (same); Forster v. R.J. Reynolds Tobacco Co., 437 N.W.2d 655 (Minn.1989) (Labeling Act impliedly preempts state law tort claims based on state imposed duty to warn); Phillips v. R.J. Reynolds Industries, Inc., 769 S.W.2d 488, 490 (Tenn.App.1988) (Labeling Act preempts plaintiff's product liability action alleging inadequate warning).

We hold, therefore, that health related claims based on a failure to give adequate warning of the dangers inherent in cigarette smoking or on promotional activities of the manufacturer or seller have been impliedly preempted by the Federal Cigarette Labeling and Advertising Act.

Appellant's design defect claim, however, has not been preempted by the Labeling Act. Courts which have analyzed this question agree that the Labeling Act's preemptive effect is limited solely to claims based on the adequacy of warnings and advertising or promotional activity of the cigarette manufacturers. See: Pennington v. Vistron Corp., supra; Cipollone v. Liggett Group, Inc., supra (Labeling Act does not preempt all state tort claims); Kotler v. American Tobacco Co., supra (tobacco companies not immune from liability on grounds which do not challenge adequacy of warnings or propriety of advertising or promotional activities); Gianitsis v. American Brands, Inc., supra; Cipollone v. Liggett Group, Inc., 649 F.Supp. 664 (D.N.J.1986); Forster v. R.J. Reynolds Tobacco Co., supra (except for duty to warn, there is no federal preemption of claims based on defective condition of product); Dewey v. Brown & Williamson...