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Consumer Issues Top Supreme Court's Docket

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Consumer Issues Top Supreme Court's Docket

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Consumer Issues Top Supreme Court's Docket

Consumer Issues Top Supreme Court's Docket

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This is the first Monday in October, and by tradition that also means it is the opening day for a new Supreme Court term. With the election on everyone's mind, the court, so far at least, has steered clear of most of the hot-button social issues.

But the justices are still slated to resolve a variety of compelling questions, from drug company immunity to penalties levied against broadcasters for dirty words on radio and TV.

Abortion and gay rights may ring people's chimes and fuel political campaigns. But the fact is that Supreme Court decisions determining whether individuals have the right to sue and on what grounds actually affect the lives of far more people and shape the conduct of business in America.

At Issue: Consumers, Packaging And Promises

Last term, the newly constituted and more conservative Supreme Court gave business a bunch of big victories, essentially barring most investor lawsuits against Enron and other similar bad actors in the corporate world, and also barring most lawsuits against medical device manufacturers.

This term, the court has more business and consumer cases on its schedule.

Leading the docket is an issue that has long topped the business community's wish list: immunity from lawsuits for drug companies. The shield that drug companies argue protects them from suit is a legal doctrine called pre-emption — meaning that Congress can write laws that give the federal government the exclusive right to regulate in an area, barring states from getting into the act.

Pharmaceutical firms are regulated by the Food and Drug Administration, but that alone does not pre-empt state lawsuits — and for decades, courts have ruled that lawsuits can still go forward against drug companies for failing to adequately label and warn consumers and doctors about either the dangers of a drug or the dangers in administering it.

This term, the case before the court involves warnings about administering a drug called Phenergan, which is made by Wyeth.

A musician in Vermont who was injected with the drug for nausea during a migraine attack sued the company because the method of injection caused gangrene in her arm, and it had to be amputated.

The Vermont courts found the drug company failed to adequately warn doctors and patients that one injection method — the one used in this case — significantly increases the risk of irreversible gangrene.

Wyeth is arguing that lawsuits like this one are barred, because the FDA approved its label. And for the first time, the federal agency is taking the side of the company.

The case poses two questions.

First: Could Wyeth have changed the label, and should it have?

And second: If the company should have changed the label, can injured consumers sue in state court for damages — or is the FDA the sole entity that can take action against the drug company?

Former solicitor general Seth Waxman represents the drug company; he argues that juries should not be making such case-by-case judgments.

"The pharmaceutical companies and industry have said, 'If we're going to have a single national economy that competes in any meaningful way, we certainly have to have a world in which a single expert agency will make these balancing decisions,'" Waxman said.

In the past, the FDA has said that the label it approves is essentially the minimum warning drug companies must provide, and that they can do more. Since the FDA gets most of its information from the drug companies themselves, it saw lawsuits as an additional check on the pharmaceutical industry.

But now, the Bush administration has abandoned that position.

In the view of Georgetown law professor David Vladeck, "Part of the issue in this case is whether the FDA has the capacity to monitor effectively all the 11,000 drugs on the market, post-approval."

Pre-Empting State Lawsuits

Pre-emption is also at the heart of a case that's being argued before the justices Monday. It tests whether consumers can sue cigarette manufacturers for falsely advertising light cigarettes as less dangerous.

Some tobacco industry critics have called the pre-emption defense the "Get Out of Jail" card for tobacco companies that are being sued over light cigarettes in virtually every jurisdiction in the country.

Consumers behind the suit say the cigarette makers falsely suggested that lights are safer to use than regular cigarettes. The major federal court ruling on the issue found that the tobacco companies' claim that light cigarettes are less dangerous is not only false, but a principal part in efforts to mislead the public about the health risks of smoking.

The cigarette companies, however, claim they cannot be sued by individuals seeking damages over deceptive advertising, because the cigarette labeling act gives all regulatory power over cigarette labeling and advertising to the Federal Trade Commission.

If these pre-emption cases present controversies with life-and-death consequences, the court's other major case this fall touches on an issue that merely makes people mad — namely, the use of foul language on TV and radio.

In plain but clean English, the issue is whether the federal government can punish TV and radio broadcasters for one-time, fleeting use of the f-word or other similarly offensive words. Thirty years ago, the court said the Federal Communications Commission could punish repeated uses of the so-called "seven dirty words."

But two years ago, the agency toughened its rules to make even one-time fleeting uses of nasty words punishable.

The agency deemed indecent FOX Broadcasting's live airing of the Billboard Music Awards, when award-winner Cher used the f-word, and a year later when Nicole Richie used the s- and f- words. Fox challenged the FCC's rule and won in the lower court. The Bush administration appealed to the Supreme Court.

From Profanity To Security

There is no way to transition from dirty words to national security, but transition we must in a story about the subjects on the Supreme Court table this term. In recent years, the Bush administration has cited national security in arguing that the courts should not get involved in the rights of suspected terrorists detained in the United States and at Guantanamo Bay.

This term, so far at least, there are no cases involving suspected terrorists.

But there is a case testing how far the president and his agencies can go in setting aside environmental laws in the name of national security. At issue is a long-running dispute over the Navy's use of mid-frequency sonar in training exercises off the California coast.

The issue is: Does federal law require the Navy to adopt mitigating steps to minimize these exercises' damage to whales and dolphins?

The president and the executive-branch agency called the Council on Environmental Quality have gotten around that question by ordering the environmental laws to be suspended on the basis of a national security emergency — namely, the need to train thousands of military personnel.

But the federal courts have concluded that there was no emergency, that the administration had waited months to appeal its first court loss, and that under federal law, the executive branch cannot simply waive federal environmental laws on its own. Now the issue is before the Supreme Court.

There are many other important issues pending before the court, from a major sexual harassment question to a case testing when religious groups are entitled to have monuments on public property.

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