The Scope of Preemption under the 2009 Family Smoking Prevention and Tobacco Control Act (2016)

Author: Sam Halabi 

I. Introduction

Although the Patient Protection and Affordable Care Act and the Dodd-Frank Wall Street Reform and Consumer Protection Act overshadow it, the first major law signed by President Barack Obama in his first term, the 2009 Family Smoking Prevention and Tobacco Control Act (Tobacco Control Act), competes with both health insurance and financial reform laws in terms of the human and economic cost it aimed to reduce: annually tobacco consumption kills over 400,000 Americans, sickens and injures more than 8 million and causes over $100 billion in economic loss.  Previous legislative and regulatory efforts to curb the public health burden imposed by tobacco faltered against the industry’s strong ties in Congress, strategies that emphasized ineffective self-regulatory measures, and the U.S. Supreme Court’s decision in FDA v. Brown and Williamson Tobacco Corp., which rejected the Clinton Administration’s effort to assert FDA authority over tobacco products absent an explicit Congressional mandate to do so. Litigation had succeeded, however, as states’ attorneys general and private litigants slowly but steadily eroded the industry’s invulnerability in the courts, resulting in the Master Settlement Agreement with 46 states and as yet uncertain tort and statutory consumer protection liabilities that may run into the billions of dollars. 

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