Vanderbilt Law Review


Christopher May

First Page



Since the 1950s, anti-tobacco forces and the United States government have widely publicized the harm that the consumption of cigarettes can cause to humans. Smoking causes diseases of the oral cavity, cardio-pulmonary system, larynx, and bladder. In addition, the use of tobacco may also be related to sterility, ulcers, cancers of several internal organs, and even blindness. The severity of the consequences increases with the amount of consumption.

Experts estimate that 400,000 Americans die each year from smokings almost one out of every five deaths. In addition, the Surgeon General reports that as many as 2,400 deaths occur annually because of the inhalation of second-hand smoke.? Such large numbers contrast sharply with the recent increase in health consciousness among so many Americans. Although consumption of cigarettes is declining in the United States by 1.2% annually,12 the difficulty of quitting is a factor in the continued high incidence of tobacco-related deaths.

The federal government's response to smoking-related illness, albeit somewhat belated, has been to consistently increase the regulation of cigarettes. In 1965, Congress enacted the Federal Cigarette Labeling and Advertising Act, which required warning labels on cigarette packaging.'s Congress banned the advertisement of cigarettes on television in 1970. In 1984, Congress required billboards advertising cigarettes to display the same warnings previously required on packages of cigarettes. Most recently, in 1995, the Food and Drug Administration asserted it had broad jurisdiction to regulate tobacco as a drug. Morris now publishes ... a free magazine extolling the 'smoking lifestyle' and championing 'smokers' rights.' ").

Individual plaintiffs have repeatedly sought damages from tobacco companies for illnesses allegedly caused by smoking. However, these efforts have generally failed. Such lawsuits can be grouped into two "waves." The plaintiffs in the first wave of suits relied upon negligence and warranty theories of recovery. Few of the first wave cases went to trial and none was successful. In 1965, the American Law Institute effectively ended the first wave of tobacco litigation by publishing the Restatement (Second) of Torts section 402A comment i. Comment i specifically absolved tobacco producers from liability under section 402A unless the plaintiff could show a manufacturing defect causing a cigarette to be more injurious than a consumer would ordinarily anticipate.