Gale Encyclopedia Of American Law 3Rd Edition Volume 10 P6 potx

TIME IS OF THE ESSENCE A phrase in a contract that means that performance by one party at or within the period specified in the contract is necessary to enable that party to require performance by the other party. Failure to act within the time required constitutes a breach of the contract. The general rule is that time is not of the essence unless the contract expressly so provides. As a result, with respect to real estate transactions, the modern view is that time is not of the essence unless the parties have manifested such an intent. The same is generally true in construction contracts and in contracts relating to the manufacture of goods. When time is not of the essence, courts generally permit parties to perform their obligations within a reasonable time. TIME, PLACE, AND MANNER RESTRICTIONS Limits that government can impose on the occasion, location, and type of individual expression in some circumstances. The FIRST AMENDMENT to the U.S. Constitu- tion guarantees FREEDOM OF SPEECH. This guarantee generally safeguards the right of individuals to express themselves without governmental restraint. Nevertheless, the Free Speech Clause of the First Amendment is not absolute. It has never been interpreted to guarantee all forms of speech wit hout any restraint whatsoever. In- stead, the U.S. SUPREME COURT has repeatedly ruled that state and federal governments may place reasonable restrictions on the time, place, and manner of individual expression. Time, place, and manner (TPM) restrictions accom- modate public convenience and promote order by regulating traffic flow, preserving property interests, conserving the environment, and protecting the administration of justice. The Supreme Court has developed a four- part analysis to evaluate the constitutionality of TPM restrictions. To pass muster under the First Amendment, TPM restrictions must be content-neutral, be narrowly drawn, serve a significant government interes t, and leave open alternative channels of communication. Appli- cation of this analysis varies in accordance with the circumstances of each case. The rationale supporting a particular TPM restriction may receive less rigorous scrutiny when the government seeks to regulate speech of lower value such as OBSCENITY and fighting words. Obscene speech includes most hard-core PORNOGRAPHY, while fighti ng words include offensive speech that would incite a reasonable person to violence. Conversely, the government must offer “compelling” reason s for regulating highly valued forms of expression, such as political speech. Some speech, such as commercial advertisements, is valued less than political speech but more than obscenity or fighting words. The government may impose reasonable TPM restrictions on this intermediate category of speech only if it can advance a “significant” or “important” reason for doing so. Time Restrictions Time restrictions regulate when individuals may express themselves. At certain times of the day, the government may curtail or prohibit speech to address legitimate societal concerns, such as traffic congestion and crowd control. For example, political protesters may seek to demonstrate in densely populated cities to draw maximum attention to their cause. The First Amendment permits protesters to take such action, but not whenever they choose. The Supreme Court has held on more than one occasion that no one may “insist upon a street meeting in the middle of Times Square at the rush hour as a form of freedom of speech” (Cox v. Louisiana, 379 U.S. 536, 85 S. Ct. 453, 13 L. Ed. 2d 471 [1965]). In most instances a commuter’s interest in getting to and from work outweighs an individual’s right to tie up traffic through political expres sion. Place Restrictions Place restrictions regulate where individuals may express themselves. The Supreme Court has recognized three forums of public expression: traditional public forums, limited public forums, and nonpublic forums. Traditional public forums are those places historically reserved for the dissemination of information and the communication of ideas. Consisting of parks, sidewalks, and streets, traditional public forums are an especially important medium for the least powerful members of society who lack access to other cha nnels of expression, such as radio and television. Under the First Amend- ment, the government may not close traditional public forums but may place reasonable restrictions on their use. The reasonableness of any such restriction will be evaluated in light of specific guidelines GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 38 TIME IS OF THE ESSENCE that have been established by the Supreme Court. First, a restriction must be content- neutral, which means the government may not prohibit entire classes of expression, such as speech concerning poverty, dru g abuse, or race relations. Second, a restriction must be viewpoint-neutral, which means that it must apply uniformly to all speech; it may not silence only those speakers whom the govern ment opposes or sanction only those whom the government supports. Third, a restriction must burden speech no more than is necessary to serve an important government interest. Restrictions that are carefully aimed at controlling the harmful consequences of speech, such as litter, unrest, and disorder, will normally satisfy these guidelines. Limited public forums are those places held out by the government for civic discussion. Capitol grounds, courthouses, state fairs, and public universities have all qualified as limited public forums for First Amendment purposes. Although the government may designate such places as sites for public speech under certain circumstances, the Supreme Court has recognized that individual expression is not the sole objective served by limited public forums. For example, courthouses are primarily designed to administer justice, though important social discourse often takes place on the courthouse steps. Consequently, the First Amendment gives the government greater latitude in regulating limited public forums than traditional public forums. The government is allowed to regulate nonpublic forums with even greater latitude. Nonpublic forums include privately owned property and publicly owned property devoted almost exclusively to purposes other than individual expression. Airports, jailhouses, mil- itary bases, and private residential property have all been deemed nonpublic forums under the First Amendment. Public sidewalks and streets that abut private property normally retain their status as traditional public forums (Frisby v. Schultz, 487 U.S. 474, 108 S. Ct. 2495, 101 L. Ed. 2d 420 [1988]). In nonpublic forums the government may impose speech restrictions that are reasonably related to the forum’s function, including restrictions that discriminate against particular viewpoints. For example, in Perry Educ. Ass’nv. Perry Local Educators’ Ass’n, 460 U.S. 37, 103 S. Ct. 948, 74 L. Ed. 2d 794 (1983), the Supreme Court ruled that a rival teachers’ union could be denied access to public school mailboxes, even though the elected union representative had been given access by the educational association. This restriction was reasonable, the court said, in light of the elected representative’s responsibilities to negotiate labor agreem ents on behalf of the union. Manner Restrictions Manner restrictions regulate the mode of individual expression. Not every form of expression requires use of the written or spoken word. Some of the most visceral impressions are made by SYMBOLIC SPEECH. Symbolic speech can include something as complicated as an algebraic equation or as simple as the nod of a head. Under the First Amendment, symbolic expression often takes the form of political protest. Flag burning is an example of symbolic speech that the Supreme Court found to be protected by the Free Speech Clause (Texas v. Johnson, 491 U.S. 397, 109 S. Ct. 2533, 105 L. Ed. 2d 342 [1989]). When the government attempts to regulate symbolic expression, courts balance the compet- ing interests asserted by the litigants. Regulations that are targeted at suppressing a symbolic message will be closely scrutinized by the judiciary, while regulations that serve compelling government interests unrelated to the expression of ideas will be subject to less exacting judicial scrutiny. For example, in Clark v. Community for Creative Non-Violence, 468 U.S. 288, 104 S. Ct. 3065, 82 L. Ed. 2d 221 (1984), the Supreme Court upheld a federal regulation that prohibited sleeping in certain national parks, despite the objections of protesters who had camped out in a national park to symbolize the plight of the homeless. The court said the regulation was not aimed at suppressing symbolic expression because it applied to all persons, not just the protesters involved in the case. The court also noted that the regulation was reasonably designed to preserve national parks by minimiz- ing the wear and tear caused by campers. Finally, the court emphasized that the protesters were free to carry out their vigil at other venues across the country. Since the 1990s, time, place, and man ner restrictions have been adopted by local governments to control political and social protests. The anti-abortion movement’s PICKETING of clinics providing ABORTION services led to federal and local legislation that creates buffer zones GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION TIME, PLACE, AND MANNER RESTRICTIONS 39 between protesters and clinics. In Hill v. Color- ado, 530 U.S. 703, 120 SCt 2480, 147 L Ed 2d 597 (2000), the Supreme Court upheld a Colorado statute directed at abortion protesters that established a 100-foot zone around the entrance to any “health care facility.” Within this buffer zone, people could not, without consent “knowingly approach another person within 8 feet,” for the purpose of passing out literature or engaging in “ora l protest, education, or counseling” on a public sidewalk. The court found it was a valid time, place, and manner restriction because protesters could exercise their First Amendment rights subject to a reasonable boundary. Cities hosting the political conventions of the Democratic and Republican parties in 2004 and 2008 enacted restrictions on political protest, designating zones and parade routes that kept protesters well away from convention halls and delegates. Federal courts upheld these restrictions as consistent with the Supreme Court’spre- cedents on time, place, and manner restrictions. FURTHER READINGS Barron, Jerome, and Thomas Dienes. 2008. First Amendment Law in a Nutshell. 4th ed. St. Paul, MN: Thomson West. Tribe, Lawrence. 2008. The Invisible Constitution. New York: Oxford Univ. Press. CROSS REFERENCE Compelling State Interest. TIME-PRICE DIFFERENTIAL A method whereby a seller charges one amount for the immediate cash payment of merchandise and another amount for the same item or items when payment is rendered at a future date or in installments. The immediate payment price is called the cash-price; the later priceisknownasthe time-price or credit-price. The time-price differential is the difference between the two prices. An individual purchasing an item through a retailer will pay one price if paid for immediately (the cash price) and another if financed, with attendant interest and other charges (the time price). TIMELY Existing or taking place within the designated period; seasonable. A legal action is timely filed, for example, when it is brought within the time period set by the STATUTE OF LIMITATIONS. The meaning of the term timely must, in a number of situations, be determined on the basis of the facts and circumstances of each individual case. Courts have extensive discretion in determining whether a particular party has acted in a timely manner in filing papers, serving notices, or bringing motions in a legal action. TIMESHARE A form of shared property ownership, commonly in vacation or recreation condominium property, in which rights vest in several owners to use property for a specified period each year. Timeshare ownership of vacation or recreation condominium property is a popular choice for persons who wish to secure a long-term commitment to a particular location. Timeshar- ing is common in Hawaii, Florida, Arizona, Colorado, and Mexico, as well as in certain other popular vacation spots in the United States. When a person signs a contract to purchase a “timeshare,” she is agreeing to pay the owner of the property a sum of money for the exclusive right to use or occupy the property for a specified time during the year. One or two weeks is the typical period that may be purchased. Usually, the timeshare agreement is made for improved property, such as a vacation home or a particular unit in a condominium complex. The form of a timeshare agreement varies. Usually, the person has the right of exclusive use of the unit during the same time each year or other specified period. Each timeshare unit is considered an estate or interest in real property, separate and distinct from all other timeshare estates in the same unit or any other unit. Therefore, estates may be separately conveyed and encumbered. The cost of purchasing a timeshare depends on the time of year selected; premium prices are charged for the most popular times of the year. The annual maintenance fee for the condominium unit and the annual property taxes are divided proportionally among the timeshare owners. A person who does not plan to use the property during the specified period may rent the timeshare to a THIRD PARTY,butthecompany managing the property may require that it BROKER such transactions and receive a fee for the rentals. State and Federal Regulations Timeshare agreements are affected by various federal and state statutes. States generally GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 40 TIME-PRICE DIFFERENTIAL require developers of timeshares to file detailed statements that demonstrate compliance with all applicable statutory requirements. For example, states typically require the developer to fully disclose how the project is to be financed and to give examples of all contracts, deeds, fact sheets, and other instruments that will be used in marketing, financing, and conveying timeshare interests. Some states also require information from the developer concerning the management of the project, including a copy of the management agreement, disclosure of any relationship between the developer and the management company, and a statement as to whether the management agent will be bonded or insured. Timesharing usually is regulated through the REAL ESTATE commission in the state where the timeshare property is located. Deeded Contracts With deeded contracts, the use of the resort is usually divided into weekly increments and signifies partial ownership of the real property. The owner may use their week, rent it, give it away, leave it to heirs, or sell their week to another prospective buyer. The timeshare owner is also liable for their portion of real estate taxes, which usually are collected with a condominium maintenance fee. Owners can deduct some property-related expenses, such as real estate taxes, from their TAXABLE INCOME. Deeded ownership can be very complex, and is often compared to outright property ownership because the structure of deeds varies according to local property laws. Right-to-Use Contracts With a right-to-use contract, the purchaser has the right to use the property in accordance with the contract, but the contract eventually ends, and all rights revert to the property owner. The right-to-use contract grants the right to use the property for a specific number of years. In many countries, there are limits on foreign property ownership, so this is a common method for developing resorts in countries such as Mexico. Disney Vacation Club is also sold as a right to use. Caution should be taken with the right to use, as it often takes the form of a club membership or right to use the reservation system. Whereas the reservation system is owned by the company not in the control of the owners, the right of use may be lost if the company fails. Federal Trade Commission (FTC) The FEDERAL TRADE COMMISSION is the nation’s consumer-protection agency that works to prevent fraudulent, deceptive, and unfair busi- ness practices, including those associated with timesharing. The FTC enters Internet, telemar- keting, IDENTITY THEFT, and other fraud-related complaints into Consumer Sentinel, a secure, online database available to hundreds of civil and CRIMINAL LAW enforcement agencies in the United States and abroad. W hile the Federal Trade Commission protects the consumer, it suggests that individuals do their homework before buying or selling any property, including timeshares. CROSS REFERENCE Condominiums and Cooperatives. TINKER V. DES MOINES INDEPENDENT COMMUNITY SCHOOL DISTRICT In the landmark case of Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S. Ct. 733, 21 L. Ed. 2d 731 (1969), the U.S. Supreme Court extended the First Amendment’s right to freedom of expression to public school students. The ruling, which occurred during the VIETNAM WAR, granted students the right to express their political opinions as long as they did not disru pt the classroom. The Court made clear that public school administrators and school boards could not restrict FIRST AMENDMENT rights based on a general fear of disruption. The case grew out of political opposition to the Vietnam War. In December 1965 a group of students in the Des Moines public school system decided to protest the war. John Tinker, 15 years old, his 13 year old sister Mary Beth, and 16-year-old Christopher Eckhardt sought to publicize their antiwar position and their support for a truc e by wearing black armbands to school in the weeks leading up to the Christmas holidays. School administrators became aware of the plan to wear armbands and immediately adopted a new policy that prohibited the wearing of armbands. Students who refused to remove them would be suspended until they agreed not to wear them. The three students, who were aware of the policy, arrived at their schools a few days later wearing the armbands. They were promptly suspended and GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION TINKER V. DES MOINES INDEPENDENT COMMUNITY SCHOOL DISTRICT 41 sent home. They did not return to school until after the holiday season, when their planned protest period had expired. The three teenagers filed a CIVIL RIGHTS lawsuit in federal court through their fathers, asking that the court issue an INJUNCTION that would bar the school system fr om d isciplining the students. The district court sided with the school board, concluding that the schools had acted reasonably to prevent a disturbance of school discipline. The Eighth Circuit Court of Appeals upheld this ruling on an evenly divided vote. The students then brought their case to the Supreme Court. The Court, in a 7–2 dec ision, overturned the lower court rulings. Justice ABE FORTAS,in his majority opinion, stated at the outset that students and teachers do not “shed their constitutional rights to FREEDOM OF SPEECH or expression at the schoolhouse door.” However, he acknowledged that the Court had upheld the authority of school officials to “prescribe and control conduct in the schools.” Thus, the issue before the Court concerned the area where the First Amendment rights of students collided with the rights of school administrators to maintain order and discipline. Justice Fortas noted that the actions taken by the three students had not been disruptive or aggressive. The protest was a “silent, passive expression of opinion,” that had led to the suspension of only five students out of the 18,000 enrolled in the Des Moines schools. Though a few hostile comments had been made to the students who were wearing armbands, there had been no threats or acts of violence. Based on this factual record, Fortas found puzzling the district court’s finding that the school had reasonable grounds for barring the armbands. The principals may have had general and nonspecific fears of a disturbance, but such fears were not sufficient to overcome the students’ First Amendment rights. He pointed out that any departure from the normal school regimen was liable to cause trouble. However, the risk of a word or symbolic expression causing a disturbance was the “sort of hazardous freedom” that made the country strong and vigorous. The school system could not ban a particular expression of opinion unless it could show its actions were based on more than the “mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.” In the case of the Des Moines schools there had been no findings that the armbands would substantially interfere with school operations or harm the rights of other students. Justice Fortas concluded that the principals sought to avoid controversy concerning the Vietnam War. This conclusion was reinforced by the fact that the schools had banned only the black armbands. The schools permitted students to wear political campaign buttons and even the Iron Cross, which was a symbol of Nazism. Students could not be singled out for their political view s without that action being a violation of the First Amendment. Justice Fortas concluded his opinion with a lecture on free speech and public schools. He stated that public schools were not “enclaves of totalitarianism,” with school officials wielding absolute authority over their students. Students could not be regarded as “closed-circuit recipi- ents” of state indoctrination. Therefore, absent a specific demonstration of “constitutionally valid reasons to regulate their speech, students are entitled to freedom of expression of their views.” Students were entitled to this freedom whether in a classroom, a hallway, a cafeteria, or an athletic field. Absent a showing by school officials that the expression “materially disrupts class work or involves substantial disorder or invasion of the rights of others,” students must be guaranteed freedom of speech. In Fortas’sview, freedom of speech was not confined to a “telephone booth or the four corners of a pamphlet, or to supervised and ordained discussion in a school classroom.” Because the three students had not disrupted their schools with their passive displays of political protest, they were protected by the First Amendment. Justice HUGO BLACK, in a dissenting opinion, angrily lamented the Court’s endorsement of permissiveness. He argued that the conduct in question had been disruptive and that school officials had the right to control their class- rooms. Black stated that it was a “myth to say that any person has a constitutional right to say what he pleases, where he pleases, and when he pleases.” Teachers were hired to teach, and students were sent to school to learn; neither teacher nor students were sent in to publicly funded schools to express their political views. Black foresaw an ominous future where students used the Court’s decision to assert total control of their schools. Justice Black’s prophecy proved false. In addition, the Supreme Court issued decisions in the coming years that gave more power to GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 42 TINKER V. DES MOINES INDEPENDENT COMMUNITY SCHOOL DISTRICT school administrators to regulate student conduct. Nevertheless, the Tinker decision changed the legal landscape for students who sought to exercise their First Amendment rights. FURTHER READINGS Farish, Leah. 1997. Tinker v. Des Moines: Student Protest. Berkeley Heights, N.J.: Enslow. Janda, Kenneth, and Jeffrey M. Berry. 2009. The Challenge of Democracy: American Government in a Global World. 7th ed. Boston, M.A.: Wadsworth Publishing. Johnson, John W. 1997. The Struggle for Student Rights: Tinker v. Des Moines and the 1960s. Lawrence: Univ. Press of Kansas. Rappaport, Diane. 1993. Tinker v. Des Moines: Student Rights on Trial. New York: HarperCollins. CROSS REFERENCES First Amendment; Protest. TITHING In Western ecclesiastical law, the act of paying a percentage of one’s income to further religious purposes. One ofthe political subdivisions of England that was composed of ten families who held freehold estates. Ecclesiastical law pertains to English law relating to the affairs of the church. Practices such as alimony are derived from English ecclesiastical law. Residents of a tithing were j oined in a society and bound to the king to maintain peaceful relations with each other. The person responsible for the administration of the tithing was called the tithing-man; he was a forerunner of the constable. TITLE In PROPERTY LAW, a comprehensive term referring to the legal basis of the ownership of property, encompassing real and PERSONAL PROPERTY and intangible and tangible interests therein; also a document serving as evidence of ownership of property, such as the certificate of title to a motor vehicle. In regard to legislation, the headi ng or preliminary part of a particular statute that designates the name by which that act is known. In the law of TRADEMARKS, the name of an item that may be used exclusively by an individual for identification purposes to indicate the quality and origin of the item. In the law of property, title in its broadest sense refers to all rights that can be secured and enjoyed under the law. It is frequently synony- mous with absolute ownership. Title to property ordinarily signifies an estate in fee simple, which means that the holder has full and absolute ownership. The term does not neces- sarily imply absolute ownership, however; it can also mean mere possession or the right thereof. The title of a statute is ordinarily prefixed to the text of a statute in the form of a concise summary of its contents, such as “An act for the prevention of the abuse of narcotics.” Other statutes are given titles that briefly describe the subject matter, such as the “Americans with Disabilities Act.” State constitutions commonly provide that every bill introduced in the state legislature must have a single subject expressed by the bill’s title. Congress is under no such restriction under the U.S. Constitution, but House and Senate rules do have some guidelines for federal bills and statutes. Many, though not all, federal statutes have titles. Under TRADEMARK law, if a publisher adop ts a name, or title, for a magazine and uses it extensively in compliance with the law, the publisher may acquire a right to be protected in the exclusive use of that title. A trademark of the title can only be acquired through actual use of the title in connection with the goods, in this example, the magazine. Merely planning to use the title does not give rise to legally enforceable trademark rights. CROSS REFERENCES Title Insurance; Title Search. TITLE INSURANCE A contractual arrangement entered into to indemnify loss or damage resulting from defects or problems relating to the ownership of real property, or from the enforcement of liens that exist against it. Title insurance is ordinarily taken out by a purchaser of the property, or by an individual lending money on the mortgage, in an amount equivalent to the purchase price of the property. To be entitled to coverage, the purchaser typically pays one lump sum premium, usually at the day of the closing. Title insurance companies are specially organized for this purpose. They retain complete sets of abstracts of title or duplicates of the record, hire expert title examiners, and prepare all types of con- veyances and transfers. Following a title search, such companies furnish a certificate of title, indicating the findings of the title examiner with respect to the state of the title to the property involved. Title insurance companies are liable only for a lack of care, skill, or diligence on the GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION TITLE INSURANCE 43 part of their examiner when a title certificate is issued up to the face amount of the policy. An insurance of title, however, warrants the validity of the title in any and all events. CROSS REFERENCES Recording of Land Title s; Registration of Land Titles. TITLE SEARCH The process of examining official county records to determine whether an owner’s rights in real property are good. A title search is conducted to discover whether there are any defects in the ownership of a particular tract of land. An ABSTRACT OF TITLE , prepared by the examiner subsequent to such an investigation, is a condensed history of the title to the land. CROSS REFERENCES Recording of Land Title s; Registration of Land Titles. TO WIT That is to say; namely. Such as, “The men accused, to wit: John Doe and John Smith, are charged with multiple crimes.” TOBACCO For centuries the leaves of the tobacco plant have been used for making smoking tobacco and chewing tobacco. Tobacco contains small amounts of nicotine, a stimulant that acts on the heart and other organs and the nervous system when tobacco is inhaled, ingested, or absorbed. Nicotine’s effect on the nervous system causes people to become addicted to it, and the stimulating effects make smoking and chewing tobacco pleasurable. Concentrated amounts of nicotine are poisonous, however. Although the use of tobacco was condemned on occasion in the past, not until the latter half of the twentieth century were concerted efforts made to curb tobacco use in the United States. By 2009, societal attitudes and laws had changed the way tobacco products could be manufactured and consumed. History Before the arrival of Europeans in America, Native Americans were growing and harvesting tobacco to be smoked in pipes. Europeans exploring America learned of this practice and took tobacco seeds back to Europe where tobacco was grown and used as a medicine to help people relax. European physicians believed that tobacco should be used only for medicinal purposes. Commercial production of tobacco began in the colony of Virginia in the early seventeenth century where it soon became an important crop. The expansion of tobacco farming, especially in the southern colonies , contributed to the demand for and practice of slavery in America. Most tobacco grow n in the American colonies was shipped to Europe until the Revolutionary War, when manufacturers began using their crops to produce chewing and smoking tobacco. The use of tobacco for other than medicinal purposes was controversial: The Puritans in America believed that tobacco was a dangerous narcotic. Nevertheless, chewing and smoking tobacco becam e increasingly popular. Cigars were first manufactured in the United States in the early nineteenth century. Hand-rolled ci ga- rettes became popular in the mid-nineteenth century, and by the 1880s, a cigarette-making machine had been invented. In the twentieth century tobacco use, especially cigarette smoking, continued to expand in the United States. By the 1960s, scientists had confirmed that smoking could cause lung cancer, heart disease, and other illnesses. Some cigarette manufacturers reacted to these findings by reducing the levels of nicotine and tar in their cigarettes, but the medical commu nity established that these measures did not eliminate the health risks of smoking. Extensive research linked cigarette smoking and tobacco chewin g to many serious illnesses. In 2009 the American Lung Association estimated that more than 443,000 deaths per year in the United States were directly attributable to smoking, which resulted in $196 billion in annual health-related economic costs, including smoking-attributable medical economic costs and productivity losses. Tobacco is responsible for more deaths in the United States than car accidents, ACQUIRED IMMUNE DEFICIENCY SYNDROME (AIDS), alcohol, illegal drugs, homic ides, suicides, and fires combined. Medical research has not only proven that smoking is injurious to the health of the smoker, but it has also established that nonsmokers can be harmed by inhaling the cigarette smoke of others. This type of smoke is called secondhand smoke, passive smoke, in- voluntary smoke, or environmental tobacco smoke (ETS). In 1993, the ENVIRONMENTAL PROTECTION AGENCY (EPA) classified ETS as a GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 44 TITLE SEARCH known human (Gr oup A) carcinogen because it causes lung cancer in adult nonsmokers and impairs the respiratory and cardiovascular health of nonsmoking children. ETS, which is the third leading preventable cause of death in the United States, contains the same carcino- genic compounds as are found in the smoke inhaled by smokers. As these research findings have appeared, concern over tobacco’s effect on health has played an important role in encouraging government regulation of tobacco. At the same time, the popularity of tobacco use has resulted in considerable poli tical and financial strength for the tobacco industry. By the 1990s toba cco had become the seventh largest cash crop in the United States, and tobacco growers and manufacturers were realizing $47 billion annually. With such revenues available, the tobacco industry has been able to exert significant influence over tobacco regulation. Despite the tobacco companies’ efforts, the industry is subject to extensive federal and state regulation. Among the federal agencies with minor regulatory interests in tobacco and tobacco products are the BUREAU OF ALCOHOL, TOBACCO, FIREARMS, AND EXPLOSIVES, the Tax and Trade Bureau, the HEALTH AND HUMAN SERVICES DEPARTMENT , the AGRICULTURE DEPARTMENT, and the INTERNAL REVENUE SERVICE. Federal age ncies with broader power to regulate tobacco include the FEDERAL TRADE COMMISSION (FTC), the FEDERAL COMMUNICATIONS COMMISSION (FCC), and, the most recent to be granted jurisdiction, the FOOD AND DRUG ADMINISTRATION (FDA). Federal Regulation of Tobacco Advertising and Labeling In the 1950s, the federal government began to regulate the sale and production of chewing and smoking tobacco because of the growing concern over its adverse effects on the health of consumers. Traditionally, the FTC was the federal agency primarily responsible for the regulation of tobacc o products, especially with regard to labeling and advertising. In 1955 the FTC promulgated guidelines that prohibited cigarette advertisements from carrying therapeutic health claims. In 1964 the commission issued a Trade Regulation Rule on Cigarette Labeling and Advertising that strictly controlled the advertising and labeling of tobacco products. The FTC claimed that failure to warn consumers of the dangers of smoking consti- tuted an unfair and de ceptive trade practice under the Federal Trade Commission Act (15 U.S.C.A. § 41 [1994]). Shortly after the FTC issued its trade regulation rule, Congress intervened by enact- ing the Federal Cigarette Labeling and Advertis- ing Act (FCLAA) (15 U.S.C.A. §§ 1331 et seq. [2000]), which w as more moderate than the FTC regulation and preempted agency action. The FCLAA required that a health warning be conspicuously displayed on all packages and cartons of cigarettes. As originally enacted, the FCLAA required only the warning, “Caution: Cigarette Smoking May Be Hazardous to Your Health.” This act was later amended to require more explicit warnings. Under amendments added in 1984, cigarette manufacturers must use one of the following labels to satisfy the health warning requirement: SURGEON GENERAL’S WARNING: Smok- ing Causes Lung Cancer, Heart Disease, Emphysema, and May Complicate Pregnancy. SURGEON GENERAL’S WARNING: Quit- ting Smoking Now Greatly Reduces Serious Risks to Your Health. SURGEON GENERAL’S WARNING: Smok- ing by Pregnant Women May Result in Fetal Injury, Premature Birth, and Low Birth Weight. SURGEON GENERAL’S WARNING: Ciga- rette Smoke Contains Carbon Monoxide. The warning labels must also appear on all cigarette advertising, including magazine advertisements and billboards. In 1986 Congress enacted the Comprehen- sive Smokeless Tobacco Health Education Act Federal Excise Taxes Collected on Tobacco Products in 2007 SOURCE: Internal Revenue Service, Statistics of Income Tax Stats, “Historical Data Tables,” available online at http://www.irs.gov/taxstats/article/0,,id=188060,00 .html (accessed on Au g ust 14, 2009). Cigarettes Cigars Chewing tobacco and snuff Pipe tobacco Imported tobacco products Millions of dollars 6,924.5 58.4 22.1 336.5 204.2 0 50 100 150 200 250 350300 8,000 ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION TOBACCO 45 (CSTHEA) (15 U.S.C.A. §§ 4401 et seq.), which requires smokeless tobacco products to carry one of the following warning labels: “WARNING: THIS PRODUCT MAY CAUSE MOUTH CANCER” “WARNING: THIS PRODUCT MAY CAUSE GUM DISEASE AND TOOTH LOSS” “WARNING: THIS PRODUCT IS NOT A SAFE ALTERNATIVE TO CIGARETTES” The CSTHEA also requires all manufacturers, packagers, and importers of smokeless tobacco to provide the secretary of the Health and Human Services Department with a list of all ingredients used in the manufac ture of the product, as well as the quantity of nicotine contained in the product. The act further requires the secretary to report biennially to Congress with a summary of research on the health effects of smokeless tobacco, informat ion about whether its ingredients pose a health risk, and recommendations for legislative or administrative action. Finally, the act requires the FTC to report biennially to Congress about the state of smokeless tobacco sales, advertising, and marketing prac tices and also to make recommendations for legislative or administrative action. Amendments to the FCLAA require similar reports on smoking tobacco products. In 1967, the FCC decided to act upon citizen complaints it had received regarding broadcast cigarette advertising. The FCC imple- mented a rule requiring any station that broadcasts cigarette advertising to also air public service announcements prepared by various health organizations in an effort to inform listeners and viewers of the dangers of smoking. Two years later, Congress enacted the Public Health Cigarette Smoking Act of 1969 (Pub. L. No. 91-222, § 6, 84 Stat. 87, 89). The new regulations prohibited all advertising of cigarettes and small cigars via electronic communication, subject to the jurisdiction of the FCC (15 U.S.C.A. § 1335). Beginning in 1986, Congress also made it illegal to advertise smokeless tobacco on any medium of electronic communication that is subject to the jurisdiction of the FCC (15 U.S.C.A. § 4402(f)). The FCLAA, as amended by the Public Health Cigarette Smoking Act of 1969, did not work wholly to the detriment of the tobacco industry. Some legal commentators argue that it actually benefited the tobacco companies. The warning labels that were required to help inform consumers of the health risks associated with tobacc o worked to provide the manufacturers with a shield against tort liability. In Cipollone v. Liggett Group, 505 U.S. 504, 112 S. Ct. 2608, 120 L. Ed. 2d 407 [1992], the U.S. SUPREME COURT held that the FCLAA had preempted state tort law damage actions. In effect, because tobacco companies were feder- ally mandated to include warning labels on their products, they were essentially immune from product-liability suits. The Supreme Court held, however, that the FCLAA did not preempt claims based on STRICT LIABILITY, negligent design, express WARRANTY, intentional FRAUD and MISREPRESENTATION,orCONSPIRACY. This means that companies could be sued for knowingly withholding or falsifying information about health risks associated with the use of tobacco products. Federal and State Regulation of Tobacco through Taxation States have long collected excise taxes on sales of cigarettes. As of 2009, New York imposed the highest excise tax, at $2.75 per pack, and South Carolina (a tobacco-producing state) had the lowest, at $0.37 per pack. Excise taxes were also imposed on chewing tobacco products. Studies completed in the 1980s demonstrated that as the price of chewing and smoking tobacco increases, consumption of those products decreases. Many cities also impose excise taxes on tobacco. New York City has the highest combined state-city tax at $4.25 per pack. Federal Regulation of Tobacco as a Drug In 1988 the surgeon general of the United States issued a report detailing the addictive effects of nicotine. Later, scientific studies confirmed this finding. Despite this research the tobacco companies continued to deny that any relation existed between smoking and disease or that smoking was addictive. In an April 1994 congressional hearing on nicotine manipula- tion, the chief executive officers of seven tobacco companies testified under oath that they believed nicotine is not addictive and that smoking has not been shown to cause cancer. Some former tobacco company officials later publicly confessed that cigarette manufacturers had long known about the health hazards of smoking and had deliberately concealed that information from the public. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 46 TOBACCO The FDA, in 1994, began examining whether nicotine qualified as a drug under the Food, Drug and Cosmetic Act (21 U.S.C.A. §§ 301 et seq.), and thus could be regulated as such by the FDA. The FDA had formerly asserted jurisdiction over tobacco products only to the extent that they carried therapeutic claims. By 1996 the FDA had determined that cigarettes and other tobacco products were intended by their manufacturers to be delivery devices for nicotine, a drug resu lting in significant pharmacological effects on the body, including addiction. Based on the Food, Drug and Cosmetic Act definition of a drug as an article “intended to affect the structure or any function of the body” and on the FDA’sdeter- mination that the cigarette and smokeless tobacco manufacturers “intend” these effects, the FDA decla red in August 1996, that it had jurisdiction to regulate tobacco products. The tobacco companies sued in federal court, arguing that the FDA lacked the statutory authority to impose regulations on tobacco. The Supreme Court, in FDA v. Brown & Williamson Tobacco Corp. 529 U.S. 120, 120 S. Ct. 1291, 146 L. Ed. 2d 121 (2000), struck down the FDA regulations. The court, in a 5–4 decision, held that the Food, Drug, and Cosmetic Act, read as a whole, along with recent tobacco legislation passed by Congress, clearly showed that the FDA did not have the authority to regulate tobacco products. There was no movement on this front until 2009, when Congress enacted and President BARACK OBAMA signed the Family Smoking Prevention and Tobacco Control Act (Pub.L. 111-31). The law gave the FDA the authority to lower the amount of nicotine in tobacco products and to bar candy-flavored products that appeal to young peopl e. The law restricts the use of misleading labels such as “light” and “low tar“and it requires the tobacco companies to place even larger warning labels on their products. State Regulation of Tobacco State and local governments are involved in the regulation of tobacco and tobacco products. Such regulations typically restrict the use of tobacco by minors, require licenses for those who sell tobacco products, and restrict vending machine and individual cigarette sales. The scope of state and local regulation is limited because it may not extend to areas already being regulated by the federal government. For example, because the FCLAA regulates advertising based on smoking and health considerations, states and localities can restrict advertising only for ot her reasons, such as to protect citizens’ aesthetic sensibilities, to control the location or types of cigarette displays, or to protect children from promotions blatantly aimed at them as consumers. Whether the FCLAA preempts state regulation of promotions aimed at children was disputed in the courts. In Lorillard Tobacco Corp. v. Reilly, 533 U.S. 525, 121 S. Ct. 2404, 150 L. Ed. 2d 532 (2001), the Supreme Court struck down a state regulation that prohibited tobacco ads within 1,000 feet of public play- grounds, parks, and schools. The court reaf- firmed its holding that the FCLAA preempted most state regulation of advertising. States were free to use zoning restrictions to limit the size and location of advertisements of all products, not just tobacco products. The state regulation in this case was invalid because it dealt only with tobacco advertising. In addition, the regulation violated the FIRST AMENDMENT because it unduly restricted commercial free speech. Clean Indoor Air Acts Armed with information showing the effects of ETS, the federal, state, and local governments began considering statutes to prohibit smoking in nonresidential buildings. Federal laws were passed to restrict smoking in transportation systems (49 C.F.R. § 1061.1 [1991]), in government buildings (41 C.F.R. § 101-20.105-3 [1991]), and aboard domestic airline flights (14 C.F.R. § 129.29). States and localities have responded to the concern over ETS by regulating smoking in various public areas. By 2009, 25 states had enacted statewide bans on smoking in all enclosed public places, including bars and restaurants. Twelve other states ban smoking in some but not all public places. In the remaining 13 states, all but two permit local governments to impose some restrictions on smoking. Tobacco Litigation Tobacco litigation can be divided into three distinct time frames based on the types of claims pursued and the legal theories on which those claims were based. The first wave of tobacco litigation (1954–1973) involved cases GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION TOBACCO 47 . their use. The reasonableness of any such restriction will be evaluated in light of specific guidelines GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 38 TIME IS OF THE ESSENCE that have been. diligence on the GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION TITLE INSURANCE 43 part of their examiner when a title certificate is issued up to the face amount of the policy. An insurance of title,. the types of claims pursued and the legal theories on which those claims were based. The first wave of tobacco litigation (1954–1973) involved cases GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION TOBACCO

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