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Allan Favish is a Los Angeles-based attorney whose focus is on General Insurance Defense and Litigation Insurance Coverage/Reinsurance & Bad Faith Litigation.  A UCLA graduate, he received his J.D. at Hastings College of Law in 1981.

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[This article was first published in the Los Angeles Daily Journal on April 4, 1994, p. 6. The Los Angeles Daily Journal is the city's primary newspaper for the legal community.]

Cigarette manufacturers may face additional civil liability in light of recent testimony by Food and Drug Administration Commissioner Dr. David Kessler that the presence of nicotine in cigarettes serves no purpose other than to addict smokers.

Testifying before Congress March 25, Kessler further testified that nicotine provides an undesirable flavor that must be masked by additional additives. He added that even if the flavor was deemed desirable, it could be duplicated without using nicotine. Kessler also said that the technology exists to reduce nicotine levels in cigarettes to non-addictive levels.

Previous cigarette litigation has focused on the disease-causing properties of cigarettes in an attempt to prove that cigarettes are "defective" products under product liability law and that the cigarette manufacturers are negligent for making the product. Little or no attention has been given to the presence of nicotine as providing the basis for holding that cigarettes are "defective" products and that the manufacturers are negligent.

According to BAJI 9.00.5 [an official California jury instruction for civil cases], a product is defective in design "if there is a risk of danger inherent in the design that outweighs the benefits of that design." The instruction further states:

In determining whether the benefits of the design outweigh such risks you may consider, among other things, the gravity of the danger posed by the design, the likelihood that such danger would cause damage, the mechanical feasibility of a safer alternate design at the time of manufacture, the financial cost of an improved design, and the adverse consequences to the product and the consumer that would result from an alternate design.

Given the testimony of Dr. Kessler, the presence of nicotine in cigarettes clearly constitutes a design defect. There is no benefit to the smoker from the presence of nicotine. Yet, nicotine addicts the smoker to a disease-causing product. The risk outweighs the benefit.

A cigarette manufacturer might argue that the direct physical effect of the nicotine is a benefit that justifies its presence in cigarettes. But if delivery of nicotine were the only goal than that could be achieved without the disease-causing tobacco. Surely a product designed primarily to deliver nicotine is defective if it contains unneeded disease-causing tobacco.

The facts about nicotine may also help to diminish the comparative fault of smokers. For now it is clear that the substance that makes it so difficult to quit smoking should not be in the cigarette.

Cigarette manufacturers may run for cover under California Civil Code Sec. 1714.45, which was enacted in 1988. This section provides the basis for BAJI 9.00.6, which states:

The [manufacturer or seller] of a product is not liable for [injuries, death] caused by a defect in its design, which existed when the product left the possession of the [manufacturer or seller], if:

1. The product is inherently unsafe and the product is known to be unsafe by the ordinary consumer, who has the ordinary knowledge common to the community, and who consumes the product; and

2. The product is a common consumer product intended for personal consumption.

Regarding the presence of nicotine, we now have evidence that cigarettes are not "inherently unsafe" because the nicotine can be removed. Therefore, when the presence of nicotine is viewed as the "defect," Civil Code Sec. 1714.45 does not protect the manufacturer.

This is true despite the fact that Civil Code Sec. 1714.45(a)(2) lists "tobacco" as one of the products intended to be covered. The section makes clear that tobacco is only listed because it is assumed that tobacco cannot be made any safer. The section cites comment i to Section 402A of the Restatement (Second) of Torts in support of its listing of tobacco. Comment i refers to products that "cannot possibly be made entirely safe." Once again, since nicotine can be removed, cigarettes can be made safer, and therefore Sec. 402A does not apply to the presence of nicotine in cigarettes.

This analysis is further supported by Sec. 402A, which states: "Good tobacco is not unreasonably dangerous merely because the effects of smoking may be harmful; but tobacco containing something like marijuana may be unreasonably dangerous." This shows that there is no blanket protection for tobacco products in Civil Code Sec. 1714.45. When there is something in the tobacco product that can be removed, its presence can constitute a "defect" for which there is no immunity.

Dr. Kessler's testimony may lead to a governmental ban on the presence of nicotine in cigarettes.

However, hundreds of civil lawsuits may force the cigarette manufacturers to remove the nicotine without such a ban.

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