Stanford Law School - Robert Crown Law Library

Filed 12/22/05

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE ex rel. BILL LOCKYER,
as Attorney General, etc.,
Plaintiff and Respondent,
S121009
v.
Ct.App. 2/2 B160571
R.J. REYNOLDS TOBACCO COMPANY, )

Los Angeles County
Defendant and Appellant.
Super. Ct. No. KC036109

Declaring smoking to be “the single most important source of preventable
disease and premature death in California,” the Legislature in 1991 enacted a
statute prohibiting cigarette companies from distributing cigarettes as free
samples, as they might fall into the hands of children and lead them to become
addicted to tobacco, and encouraging “all persons to quit tobacco use.” (Stats.
1991, ch. 829, § 1, p. 3676, enacting former Health & Saf. Code, § 25967, subd.
(a)(11), repealed by Stats. 1995, ch. 415, § 163, p. 3335 and reenacted in 1995 as
Health & Saf. Code, § 118950, subd. (a)(11).)1 This statute prohibits the “nonsale
distribution” of cigarettes on public property2 (id., subd. (b)), except for public

1
Health and Safety Code section 118950 is cited hereafter as section 118950.
2
This case involves cigarette distribution in 1999. In 2001, the Legislature
amended section 118950. Among other matters, the amendment expanded the

(Fn. continued on next page)
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property leased for a private function to which minors are “denied access” (id.,
subd. (f)). “Each distribution of a single package . . . to an individual member of
the general public” constitutes a violation and is punished by a civil penalty of not
less than $200 for one act, $500 for two acts, and $1000 for each succeeding act.
(Id., subd. (d).)
The trial court found that defendant tobacco company had violated section
118950 at six events in 1999 and assessed it a fine of $14,826,200. The Court of
Appeal affirmed, and we granted defendant’s petition for review.
This appeal presents three issues. The first is whether defendant’s
distribution of free cigarettes at a street fair and other events did not violate section
118950 because it occurred on property leased for a private function to which
minors were denied access. The second is whether section 118950 is preempted
by a federal statute that bars states from regulating the “advertising or promotion”
of cigarettes. (15 U.S.C. § 1334(b).) The third is whether the $14,826,200 fine
assessed against defendant violates state or federal constitutional provisions
barring excessive fines. (U.S. Const., 8th Amend.; Cal. Const., art. I, § 17.) Each
issue is a close and difficult one.
I. FACTUAL AND PROCEDURAL BACKGROUND
The following facts are undisputed. At six different events held on public
property between February and October of 1999, defendant tobacco company gave
away cartons and packages containing a total of 108,155 cigarettes to 14,834 people.
One event was the Sunset Junction Street Fair in Los Angeles; the others were a

(Fn. continued from previous page)

prohibition on nonsale distribution of cigarettes to “any private property that is
open to the general public.” (§ 118950, subd. (b).)
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motorcycle race at the Del Mar Fairgrounds, an auto race at the Los Angeles County
Fairgrounds, a car show at Verdugo Park in Los Angeles, the San Jose International
Beer Festival, and the Long Beach Jazz Festival. On each occasion, defendant
contracted with the event promoter to set up a booth or a tent. Defendant posted
security guards to bar minors from entering the booth or the tent. Inside, defendant
distributed cigarettes only to people who could prove that they were current smokers
(recipients had to show that they already had a pack of cigarettes) and who
presented identification showing that they were at least 21 years old. Defendant
asked recipients to fill out a survey card on which the recipient agreed to be added
to defendant’s mailing list and to receive promotional offers.
The state Attorney General sued defendant in 2001, charging it with
violating section 118950 at the six 1999 events. The parties stipulated to the
pertinent facts relating to defendant’s practices at the six 1999 events, and filed
cross-motions for summary judgment. The trial court found that federal law did
not preempt section 118950 and that defendant violated that statute by distributing
cigarettes on public property. It entered a judgment fining defendant
$14,826,200.3 The Court of Appeal affirmed the judgment in a two-to-one
decision. We granted defendant’s petition for review.

II. THE “SAFE HARBOR” PROVISION OF HEALTH AND
SAFETY CODE SECTION 118950, SUBDIVISION (f)
Section 118950, subdivision (b), provides: “It is unlawful for any person,
agent, or employee of a person in the business of selling or distributing smokeless
tobacco or cigarettes from engaging in the nonsale distribution of any smokeless

3
The trial court, following the language of section 118950, subdivision (d),
imposed a fine of $200 for the first violation at each event, $500 for the second
violation, and $1000 for each succeeding violation.
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tobacco or cigarettes to any person in any public building, park or playground, or on
any public sidewalk, street, or other public grounds . . . .” (Italics added.) A
“ ‘[p]ublic building, park, playground, sidewalk, street, or other public grounds’ ” is
defined as “any structure or outdoor area that is owned, operated, or maintained by
any public entity, including,” among other things, “streets and sidewalks, parade
grounds, fair grounds, . . . [and] public recreational facilities.” (Id., subd. (c)(3).)
Section 118950, subdivision (f), the so-called safe harbor provision,
operates as an exception to the prohibition of section 118950, subdivision (b).
Subdivision (f) states that the prohibition on nonsale distribution of tobacco
products does not apply to any public property “leased for private functions where
minors are denied access by a peace officer or licensed security guard on the
premises.”
The Attorney General first contends that notwithstanding defendant’s
posting of security guards to exclude minors and nonsmokers from its tents and
booths, the safe harbor provision does not protect defendant’s conduct because
defendant did not “lease” the sites where it distributed cigarettes; instead,
according to the Attorney General, defendant’s occupancy right to those sites is
more properly described as a license or permit. Defendant, however, points out
that the law relating to leases of public property, the General Leasing Law (Pub.
Resources Code, § 6500 et seq.), states: “As used in this chapter [Public
Resources Code, division 6, part 2, chapter 1], ‘lease’ includes a permit, easement,
or license.” (Id., § 6501.) Because Health and Safety Code section 118950, the
statute at issue here, is not part of the chapter containing the General Leasing Law,
it is not governed by the definitions set forth in the General Leasing Law. We
agree with defendant, however, that it is unlikely that the Legislature intended that
a cigarette company’s right to distribute free cigarettes would depend on the
technical character of the cigarette distributor’s occupancy – whether it falls into
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the category of a lease, a license, or a permit – because that has no bearing on the
harm caused by the free distribution of cigarettes, an express concern of the
Legislature.
The Attorney General’s primary contention, however, is that defendant did
not exclude minors from the property within which cigarettes were distributed. As
we noted earlier, the safe harbor provision (§ 118950, subd. (f)) allows distribution
within any public property “leased for private functions where minors are denied
access . . . .” Adopting the Court of Appeal’s construction of that statutory
language, the Attorney General argues that in the context of this case the safe
harbor provision would apply only if minors were excluded from the event within
which defendant was distributing free cigarettes, not merely from defendant’s
booth or tent where cigarettes were distributed. Defendant disagrees, contending
that the statutory phrase pertaining to public property “leased for private
functions” (ibid.) refers only to the specific site it leased and from which it
distributed cigarettes.
When, as here, the statutory language “ ‘ “is susceptible of more than one
reasonable interpretation . . . , we look to a variety of extrinsic aids, including the
ostensible objects to be achieved, the evils to be remedied, the legislative history,
public policy, contemporaneous administrative construction, and the statutory
scheme of which the statute is a part.” ’ ” (People v. Jefferson (1999) 21 Cal.4th
86, 94, quoting Granberry v. Islay Investments (1995) 9 Cal.4th 738, 744.)
Both parties argue that the legislative history of section 118950 supports
their position. The Attorney General notes that in 1991, State Senator Doris Allen
suggested to State Senator Marian Bergeson, the author of Senate Bill No. 1100
(1991-1992 Reg. Sess.) (which later became section 118950), that the bill be
amended to allow portions of public grounds used for a private function to be
exempt from the statutory prohibition on free distribution of cigarettes. Senator
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Bergeson rejected that proposal. According to the Attorney General, this
exchange shows that the Legislature rejected the view that a safe harbor could
consist of a portion of public grounds used for a private function. Not so. The
Legislature did not vote on Senator Allen’s proposed amendment and there is no
evidence that other legislators were even aware of the exchange between Senator
Allen and Senator Bergeson. (See California Teachers Assn. v. San Diego
Community College Dist. (1981) 28 Cal.3d 692, 701.)
Defendant contends that the legislative history of section 118950 supports
its position. It points to a third reading analysis of Senate Bill No. 1100 (1991-
1992 Reg. Sess.), prepared by the Senate staff, that stated: “The language about
public facilities leased for private functions suggests that booths, tents or
barricaded areas may be used for sampling if there is a uniformed guard present.”
(3d reading analysis of Sen. Bill No. 1100 (1991-1992 Reg. Sess.) as amended
Sept. 9, 1991.) This analysis of Senate Bill No. 1100 is a document that the
legislators had the opportunity to consult in enacting that bill, and hence it could
be relevant to determining the legislators’ intent. (See Jevne v. Superior Court
(2005) 35 Cal.4th 935, 948.) But the language of the analysis, although relevant,
is not highly persuasive, because it merely suggests one possible interpretation of
section 118950 without indicating that the suggested interpretation is what the
legislators actually intended.
Thus, the legislative history of section 118950 contains little that
specifically addresses the scope of subdivision (f)’s safe harbor provision.
Subdivision (f), however, is but one part of section 118950, and the Legislature, in
subdivision (a) of section 118950, has set out specifically the findings and intent
underlying the statute as a whole:
“(1) Smoking is the single most important source of preventable disease
and premature death in California. [¶] . . . [¶]
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“(4) Despite laws in at least 44 states prohibiting the sale of tobacco
products to minors, each day 3,000 children start using tobacco products in this
nation. Children under the age of 18 years consume 947 million packages of
cigarettes in this country yearly.
“(5) The earlier a child begins to use tobacco products, the more likely it is
that the child will be unable to quit.
“(6) More than 60 percent of all smokers begin smoking by the age of 14
years, and 90 percent begin by the age of 19 years. [¶] . . . [¶]
“(9) Tobacco product advertising and promotion are an important cause of
tobacco use among children. More money is spent advertising and promoting
tobacco products than any other consumer product.
“(10) Distribution of tobacco product samples and coupons is a recognized
source by which minors obtain tobacco products, beginning the addiction process.
“(11) It is the intent of the Legislature that keeping children from beginning
to use tobacco products in any form and encouraging all persons to quit tobacco
use shall be among the highest priorities in disease prevention for the State of
California.”4

4
The statement of legislative intent in section 118950, subdivision (a)(11)
does not stand alone; it is one of many enactments expressing the Legislature’s
concern over the economic and health burdens arising from tobacco use. “In
1995, the California Legislature found that ‘[t]obacco-related disease places a
tremendous financial burden upon the persons with the disease, their families, the
health care delivery system, and society as a whole,’ and that ‘California spends
five billion six hundred million dollars ($5,600,000,000) a year in direct and
indirect costs on smoking-related illnesses.’ ” (Myers v. Phillip Morris
Companies, Inc. (2002) 28 Cal.4th 828, 831, quoting Health & Saf. Code,
§ 104350, subd. (a)(7).)
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When the Legislature has expressly declared its intent, we must accept the
declaration. (Tyrone v. Kelley (1973) 9 Cal.3d 1, 11; see Friends of Mammoth v.
Board of Supervisors (1972) 8 Cal.3d 247, 256-257; Souvannarath v. Hadden
(2002) 95 Cal.App.4th 1115, 1126; Barker v. Brown & Williamson Tobacco Corp.
(2001) 88 Cal.App.4th 42, 49.) Consequently, we must here construe section
118950, subdivision (f)’s safe harbor provision, allowing the free distribution of
cigarettes on public property “leased for private functions where minors are denied
access,” to conform to the Legislature’s express intent to keep children “from
beginning to use tobacco products” and to encourage all persons to quit using
tobacco. (Id., subd. (a)(11).) Because free distribution of cigarettes encourages
tobacco use, and in particular “is a recognized source by which minors obtain
tobacco products” (id., subd. (a)(10)), a statutory interpretation that restricts the
free distribution of cigarettes conforms to the legislative purpose. When, as in this
case, a civil statute is enacted for the protection of the public, it must be “broadly
construed in favor of that protective purpose.” (People ex rel. Lungren v. Superior
Court (1996) 14 Cal.4th 294, 313.)
We note that after defendant’s distribution of free cigarettes in 1999, the
Legislature in 2001 amended section 118950 to extend the prohibition on nonsale
distribution of cigarettes to “any private property that is open to the general
public” (Stats. 2001, ch. 376, § 3 [amending section 118950, subdivision (b),
which had previously only prohibited free distribution of cigarettes on public
property]). The Legislature also added a new safe harbor provision for private
property open to the general public, stating that the statutory prohibition on
nonsale distribution of cigarettes “does not apply to any private property that is
open to the general public where minors are denied access to a separate nonsale
distribution area by a peace officer or licensed security guard stationed at the
entrance of the separate nonsale distribution area and the separate nonsale
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distribution area is enclosed so as to prevent persons outside the separate nonsale
distribution area from seeing the nonsale distribution unless they undertake
unreasonable efforts to see inside the area.” (§ 118950, subd. (g).)
Thus, section 118950 now contains two safe harbor provisions—one for
public property (id., subd. (f)) and one for private property (id., subd. (g))—with
significantly different wording. The safe harbor provision for public property
permits free distribution of cigarettes on public property “leased for private
functions where minors are denied access by a peace officer or licensed security
guard on the premises.” (Id., subd. (f).) The safe harbor provision for private
property open to public use permits free distribution of cigarettes “where minors
are denied access to a separate nonsale distribution area” enclosed to prevent
persons outside that area from observing the distribution. (Id., subd. (g).)
What is the significance of the difference between the two safe harbor
provisions? “When the Legislature uses materially different language in statutory
provisions addressing the same subject or related subjects, the normal inference is
that the Legislature intended a difference in meaning.” (People v. Trevino (2001)
26 Cal.4th 237, 242; see People v. Gardeley (1996) 14 Cal.4th 605, 621-622.)
Subdivision (g) of section 118950, as we have noted, permits free distribution of
cigarettes within “a separate nonsale distribution area” carved out from the whole
of the property open to public use, thereby making it clear that minors need not be
excluded from the entire property, but only from a portion of that property.
Subdivision (f) of section 118950, on the other hand, applies only if minors are
denied access to public property “leased for private functions.” Reading the two
provisions together, and mindful of the rule of construction that significant
differences in language imply a difference in meaning, it is reasonable to conclude
that the Legislature intended to impose greater restrictions on cigarette distribution
on public property than on private property, and hence that subdivision (f) should
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be construed to require that minors be excluded entirely from a private function
that is held on leased public property.
Defendant contends that interpreting the public property safe harbor
provision (§ 118950, subd. (f)) to require exclusion of minors from the event, and
not merely from its own booth or tent, will effectively preclude it from distributing
free cigarettes at street fairs, festivals, and other large public events, and will as a
practical matter limit the safe harbor provision to smaller affairs with limited
attendance where exclusion of minors is feasible. But this limitation appears to be
exactly what the Legislature intended when it made the safe harbor provision
applicable only to public property “leased for private functions.” (Id., subd. (b),
italics added.) The Legislature has enacted other “safe harbor” provisions that,
like section 118950, subdivision (f), refer to “private functions”: For instance,
Health and Safety Code section 118900, subdivision (a), requires nonsmoking
areas in restaurants except for “banquet rooms in use for private functions”;
Business and Professions Code section 25503.16, subdivision (a)(5) prohibits the
sale of alcohol at a marine park “except during private events or private
functions”; and Business and Professions Code section 23358 permits wineries to
sell other producers’ “beers, wines, and brandies,” but only “during private events
or private functions not open to the general public.” In each of these provisions,
the context suggests that by “private functions” the Legislature primarily had in
mind parties, receptions, meetings, and similar limited-attendance gatherings.
Accordingly, it is reasonable to infer that the phrase “private functions” in section
118950, subdivision (f), does not include fairs, festivals, and similar events open
to the general public unless minors are excluded from the entire event. So limiting
the events at which cigarettes may be freely distributed furthers the Legislature’s
goals to keep children from starting to use tobacco products and to encourage
smokers to quit. (Id., subd. (a)(11).)
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In accord with the Legislature’s expressed declarations and purpose, we
construe section 118950 as banning nonsale distribution of cigarettes at events
held on public property where adults and minors are present. We next consider
whether section 118950 is preempted by federal law.
III. PREEMPTION

The Federal Cigarette Labeling and Advertising Act (FCLAA) prohibits
states from regulating the “advertising or promotion” of cigarettes. (FCLAA, 15
U.S.C. § 1334 (hereafter section 1334).) The issue here is whether a tobacco
company’s free distribution of cigarettes is a form of “promotion” that states
cannot regulate. The United States Supreme Court has not construed the term
“promotion” in the federal act, but in a number of recent cases it has described the
scope of federal preemption of state laws, including two cases construing the term
“advertising” in the federal act. (Lorillard Tobacco Co. v. Reilly (2001) 533 U.S.
525 (Lorillard); Cipollone v. Liggett Group, Inc. (1992) 505 U.S. 504
(Cipollone).) We will review the text and history of the FCLAA, analyze the
leading United States Supreme Court cases, and then apply the principles
established by those cases.
A. The Federal Cigarette Labeling and Advertising Act
The FCLAA, enacted by Congress in 1965, prohibits manufacturing,
packaging, or importing for sale or distribution any cigarettes whose package fails
to bear specified Surgeon General’s warnings. (15 U.S.C. § 1333.) The phrase
“ ‘sale or distribution’ includes sampling or any other distribution not for sale.”
(Id., § 1332(6).)
The preemption provision of the 1965 federal act prohibited states from
requiring tobacco companies to add statements relating to smoking and health to
cigarette labels or advertising that were not required by federal law. (See 79 Stat.
283.) In 1969, however, Congress amended the FCLAA to require stronger
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warnings of the dangers of smoking, and it banned cigarette advertising in “any
medium of electronic communication subject to the jurisdiction of the Federal
Communications Commission.” (15 U.S.C. § 1335.) At the same time, Congress
expanded the scope of federal preemption by amending section 1334(b) of the
federal act to provide: “No requirement or prohibition based on smoking and
health shall be imposed under State law with respect to the advertising or
promotion of any cigarettes the packages of which are labeled in conformity with
the provisions of this chapter.” (Italics added.) At issue here is whether section
1334, by banning state regulation of the “promotion” of cigarettes, prohibits a state
from regulating the free distribution of cigarettes.
Although there is considerable congressional history explaining the 1965
enactment of the FCLAA and the 1969 amendments to that act, it all concerns the
effects of smoking on health. There is nothing to explain why Congress, which in
1965 preempted states only from regulating cigarette advertising, amended the
FCLAA in 1969 to bar state regulation of advertising or promotion. And there is
nothing in the congressional history to explain what Congress meant to include
within the term “promotion,” as used in section 1334 of the federal act.
Defendant here contends that the plain meaning of “promotion” in
section 1334 includes the nonsale distribution of a product to induce recipients to
try the product. Defendant points to various instances in which free distribution of
product samples has been described as a promotional activity. The 1998 Federal
Trade Commission report to Congress, for example, described “ ‘the distribution
of cigarette samples and specialty gift items [as] sales promotion activities.’ ”
(Jones v. Vilsack (8th Cir. 2001) 272 F.3d 1030, 1035.) And the Surgeon
General’s 1994 report stated: “Promotional activities can take many forms,”
including “[f]ree samples.” (U.S. Dept. of Health & Human Services, Preventing
Tobacco Use Among Young People: A Report of Surgeon General (1994)
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p. 159.) Also, defendant notes, two federal courts have held that the plain
meaning of “promotion” in section 1334 includes the distribution of free samples.
(Jones v. Vilsack, supra, 272 F.3d 1030; Rockwood v. City of Burlington (D.Vt.
1998) 21 F.Supp.2d 411.)
The problem with defendant’s contention that the “plain meaning” of
section 1334 bars any state regulation of the free distribution of cigarettes is that,
as defendant concedes, it is clear that Congress did not intend section 1334 to
preempt state regulation of the distribution of cigarettes to minors. To the
contrary, Congress has required states to ban tobacco distribution to minors as a
condition of receiving federal funds for substance abuse treatment. (42 U.S.C.
§ 300x-26; see Mangini v. R.J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057.)
There is no language in section 1334, however, that distinguishes between
distribution to minors and distribution to adults. Hence, the state Attorney General
here contends that the only way to effectuate Congress’s intent to bar distribution
of cigarettes to minors is to draw a line distinguishing between “promotion” and
“distribution.” Under this theory, states could not regulate actions intended to
persuade persons to smoke a particular defendant’s brand of cigarettes, but it could
regulate the actual transfer of the cigarettes not only to minors but also to adults.
We examine below defendant’s contention that the “plain meaning” of
section 1334 bars state regulation of the free distribution of cigarettes and the
Attorney General’s contention that section 1334 should be construed to distinguish
between “promotion” and “distribution” so as to permit states to regulate
“distribution.”
B. United States Supreme Court Decisions
No United States Supreme Court decision defines the term “promotion” in
section 1334 or describes its preemptive scope. Both parties, however, rely on the
high court’s decisions involving related preemption issues, and both can point to
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language in those cases supporting their positions. As Justice Scalia of the United
States Supreme Court has observed, the court’s members do not agree on the
relative weight to be given to legislative context and history in the construction of
federal statutes. (Engine Mfrs. Ass’n v. South Coast Air Quality Mgmt. Dist.
(2004) 541 U.S. 246, 256.) Some justices put primary emphasis on the literal
meaning of the statutory language; others put greater emphasis on the legislative
context and history.
Cipollone, supra, 505 U.S. 504, decided in 1992, was the first decision
construing the FCLAA. The issue there was whether the ban on state regulation of
advertising in section 1334 preempted state common law actions accusing tobacco
companies of failing to warn of the dangers of smoking, of fraudulent advertising,
of breaching warranties that asserted that the use of cigarettes had no significant
health consequences, and of conspiring to deprive the public of scientific and
medical data showing the dangers of tobacco use. In a divided opinion, the high
court held that the federal act preempted only the causes of action based on failure
to warn of the dangers of tobacco use, but permitted the other causes of action.
Justice Stevens’s opinion, joined by Chief Justice Rehnquist, Justice White,
and Justice O’Connor, stated: “In our opinion, the pre-emptive scope of the 1965
Act and the 1969 Act is governed entirely by the express language in . . . each Act.”
(Cipollone, supra, 505 U.S. at p. 517.) He noted that the 1965 preemption provision
in the federal act “spoke precisely and narrowly” (id. at p. 518), but that “the plain
language of the pre-emption provision in the 1969 Act is much broader” (id. at
p. 520). Preemption provisions, however, must be construed “in light of the
presumption against the pre-emption of state police power regulations.” (Id. at
p. 518.)
Justice Stevens concluded in Cipollone that the FCLAA’s preemption of
state regulation of advertising and promotion did not preempt common law actions
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for breach of warranty, even though the warranty appeared in the cigarette
company’s advertising, because a state law enforcing a warranty voluntarily
undertaken by the company was not the same as a requirement imposed by state
law. Justice Stevens also found no preemption of common law claims charging
intentional fraud because the common law rule allowing tort actions for fraud was
not a law primarily based on concerns about smoking and health. In reaching the
latter conclusion, Justice Stevens relied on the stated purposes of the FCLAA and
a 1969 Senate report that said: “[T]he ‘preemption of regulation or prohibition
with respect to cigarette advertising is narrowly phrased to preempt only State
action based on smoking and health. It would in no way affect the power of any
State . . . with respect to the taxation or the sale of cigarettes to minors, or the
prohibition of smoking in public buildings, or similar police regulations.’ ”
(Cipollone, supra, 505 U.S. at p. 529, fn. 26, quoting Sen. Rep. No. 91-566, 2d
Sess., p. 12 (1969), italics omitted.)
Justice Blackmun, joined by Justices Kennedy and Souter, wrote separately.
Justice Blackmun asserted that “[w]e do not, absent unambiguous evidence, infer a
scope of pre-emption beyond that which clearly is mandated by Congress’
language.” (Cipollone, supra, 505 U.S. at p. 533 (conc. opn. of Blackmun, J.).)
He concluded that there was no evidence of unambiguous congressional intent to
preempt any common law causes of action.
Justice Scalia, joined by Justice Thomas, took the opposite view, asserting:
“[O]ur job is to interpret Congress’s decrees of pre-emption neither narrowly nor
broadly, but in accordance with their apparent meaning.” (Cipollone, supra, 505
U.S. at p. 544 (conc. & dis. opn. of Scalia, J.).) In Justice Scalia’s view, all
common law causes of action were preempted.
Because Justice Stevens’s plurality opinion in Cipollone relied on both the
plain meaning of the FCLAA and the context and purpose of that enactment, both
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parties here assert that Cipollone supports their position. Defendant points out that
the four justices who signed Justice Stevens’s opinion (Chief Justice Rehnquist
and Justices White, Stevens, and O’Connor), as well as dissenting Justices Scalia
and Thomas, supported the use of “plain meaning” analysis; the Attorney General
claims that seven justices (the four justices who signed Justice Stevens’s opinion,
plus Justices Blackmun, Kennedy and Souter, who wrote separately) supported
reliance upon legislative context and purpose.
Another of the high court’s decisions discussed by the parties is Medtronic,
Inc. v. Lohr (1996) 518 U.S. 470 (Medtronic). There, the issue was whether the
Medical Device Amendments (MDA) of 1976 (21 U.S.C. § 360K) preempted state
lawsuits for negligence and strict liability against a manufacturer of pacemakers.
Although the preemptive language of the MDA does not parallel that of the
FCLAA, the high court’s decision in Medtronic not to follow a “plain meaning”
interpretation of statutory language when it found that interpretation inconsistent
with the congressional purpose underlying the statute bears on our resolution of a
similar issue here.
The plurality opinion in Medtronic, supra, 518 U.S. 470, written by Justice
Stevens and joined by Justices Kennedy, Souter, and Ginsberg, found no
preemption of state law. It reasoned that because the purpose of the MDA was to
impose more stringent regulation on the makers of medical devices, it would be
contrary to the congressional purpose to grant that industry an immunity from
liability for defective devices enjoyed by no other industry. Justice Breyer, who
supplied the fifth vote for the result, said that in some instances the statutory
language would preempt state remedies, but did not do so in that case.
(Medtronic, supra, 518 U.S. at pp. 505-506.) Justice O’Connor, joined by Chief
Justice Rehnquist, Justice Scalia, and Justice Thomas, dissented, asserting that the
plain language of the MDA supported preemption. (Id. at pp. 510-511.)
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In 2001, the United States Supreme Court returned to the matter of
interpreting the FCLAA’s prohibition on state regulation of advertising in Lorillard,
supra, 533 U.S. 525. Acting under the authority of a state statute banning unfair or
deceptive trade practices, the Massachusetts Attorney General had issued
regulations that, among other things, barred outdoor advertising of cigarettes within
1000 feet of schools, parks, or playgrounds.5 Writing for the majority, Justice
O’Connor, joined by Chief Justice Rehnquist and Justices Scalia, Thomas, and
Kennedy, held that section 1334 preempted the Massachusetts regulations.6 Justice
Stevens dissented, joined by Justices Souter, Ginsberg, and Breyer.
The
Lorillard majority rejected the state’s argument that federal preemption
was limited to the content of advertising, not its location: “The content/location
distinction cannot be squared with the language of the pre-emption provision,
which reaches all ‘requirements’ and ‘prohibitions’ ‘imposed under State law.’ A
distinction between the content of advertising and the location of advertising in the
FCLAA also cannot be reconciled with Congress’ own location-based restriction,

5
The Massachusetts Attorney General’s regulations also barred free
distributions of cigarettes in public places, self-service displays and certain point-
of-sale advertising of cigarettes. In the United States Supreme Court, Lorillard
Tobacco Company did not contend that such regulations were preempted. (See
Lorillard, supra, 533 U.S. at pp. 536-540.) Thus, the validity of state regulation of
free distribution of cigarettes, although a potential issue in Lorillard, was not
addressed in the United States Supreme Court’s opinions.

California has statutes barring cigarette advertising within 1000 feet of a
school (Bus. & Prof. Code, § 22961) and banning self-service cigarette displays
(id., § 22962), similar to the Massachusetts regulations found invalid in Lorillard,
supra, 533 U.S. 525.
6
The high court majority in Lorillard consisted of the four justices who had
dissented in Medtronic, supra, 518 U.S. 570 (Chief Justice Rehnquist and Justices
O’Connor, Scalia, and Thomas), plus Justice Kennedy, the only justice who
agreed with the result in both cases.
17

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which bans advertising in electronic media, but not elsewhere.” (Lorillard, supra,
533 U.S. at pp. 548-549.) The majority also rejected the Massachusetts Attorney
General’s contention that the state regulations were “not ‘based on smoking and
health’ ” because they targeted only smoking by minors (id. at p. 547): “At
bottom, the concern about youth exposure to cigarette advertising is intertwined
with the concern about cigarette smoking and health.” (Id. at p. 548.)
The
Lorillard majority, however, recognized that “[s]tates remain free . . .
to regulate conduct with respect to cigarette use and sales.” (Lorillard, supra, 533
U.S. at p. 550.) Lorillard also stated: “[T]he FCLAA does not pre-empt state
laws prohibiting cigarette sales to minors. . . . Having prohibited the sale and
distribution of tobacco products to minors, the State may prohibit inchoate
offenses that attach to criminal conduct, such as solicitation, conspiracy, and
attempt.” (Id. at p. 552, italics added.)
C. Analysis
The United States Supreme Court decisions we have discussed agree that in
determining whether federal legislation preempts state law, “[c]ongressional
purpose is the ‘ultimate touchstone’ of our inquiry.” (Lorillard, supra, 533 U.S. at
p. 541.) When Congress enacted the FCLAA in 1965, it explained its purpose in
preempting state regulation: to ensure that “commerce and the national economy”
are “not impeded by diverse, nonuniform, and confusing cigarette labeling and
advertising regulations with respect to any relationship between smoking and
health.” (15 U.S.C. § 1331(2)(B).) Congress’s 1969 amendment of the FCLAA
did not alter this statement of purpose.
State regulation of nonsale distribution of cigarettes would not conflict with
the congressional purpose just described. Although national commerce in
cigarettes would be substantially impeded if a tobacco company’s cigarette
labeling and advertising had to be altered to comply with the laws of every state,
18

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that is not the case for state regulation of free distribution of cigarettes. Moreover,
although Congress has enacted extensive legislation governing cigarette
advertising, and has authorized the Federal Trade Commission (FTC) to impose
further regulations, Congress has never enacted any comprehensive laws
governing nonsale distributions nor authorized the FTC to do so. In view of the
health hazards of smoking expressly recognized by Congress (see 15 U.S.C.
§§ 1331, 1333), it would be unreasonable to conclude that Congress intended
nonsale distribution of cigarettes to continue entirely without regulation.
Actions by Congress after its 1969 amendment of the FCLAA also bear on
the scope of the act’s preemption of state law. “While ‘subsequent legislation
interpreting [a] statute . . . [cannot] change the meaning [of the earlier enactment,]
it [does supply] an indication of the legislative intent which may be considered
together with other factors in arriving at the true intent existing at the time the
legislation was enacted.’ [Citation.]” (Russ. Bldg. Partnership v. City and County
of San Francisco (1988) 44 Cal.3d 839, 852; accord, Aguimatang v. California
State Lottery (1991) 234 Cal.App.3d 769, 788; see Consumer Product Safety v.
GTE Sylvania, Inc. (1980) 447 U.S. 102, 118, fn. 13.)
First, in 1992 Congress enacted legislation requiring states to prohibit
nonsale distribution of cigarettes to minors as a condition of receiving federal aid
for state programs to treat substance abuse. (42 U.S.C. § 300x-26.) This
enactment shows that Congress did not regard the FCLAA as barring state
regulation of nonsale distribution of cigarettes to minors.
Second, in 1995 Congress enacted a law requiring all federal agencies to
prohibit nonsale distribution of tobacco “in or around any federal building.” (109
Stat. 507.) Defendant here points out that Congress has the power to require
certain conduct by federal agencies while prohibiting such conduct by state
agencies. (See Engine Mfrs. Ass’n v. South Coast Air Quality Mgmt. Dist., supra,
19

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541 U.S. at p. 254, fn. 6 [federal statute bars states from imposing certain emission
requirements in purchasing vehicles, even though federal agencies are required to
follow similar standards].) But it is difficult to conceive of a coherent policy that
would bar nonsale distributions in or around federal buildings yet preclude states
from barring such distributions on state property.
Third, although the FCLAA does not describe what powers are retained by
the states, the high court in Lorillard asserted that Congress intended that the
“[s]tates remain free . . . to regulate conduct with respect to cigarette use and
sales.” (Lorillard, supra, 533 U.S. at p. 550.) If the FCLAA’s bar on state
regulation of the promotion of cigarettes extends to barring state regulation of
distribution, that prohibition could not logically be confined to nonsale
distribution. Discount sales of cigarettes, sales accompanied by rebate offers, and
the distribution of coupons entitling a holder to receive free or discounted
cigarettes could equally be considered a form of promotion of cigarette sales and
use. Thus, such a broad definition would infringe on the state’s retained powers to
regulate cigarette use and sales.
Indeed, in terms of smoking’s adverse effect on health, there is very little
distinction between the sale of cigarettes at full retail price, the sale of cigarettes at
discounted prices, and the free distribution of cigarettes—all place cigarettes in the
hands of the public. The FCLAA itself does not draw a distinction between sales
of cigarettes and free distributions; it requires labeling of any package in which
cigarettes are offered for sale “or otherwise distributed to consumers” (15 U.S.C.
§ 1332(4)), and it defines the term “ ‘sale or distribution’ ” as including “sampling
or any other distribution not for sale.” (Id., § 1332(6).)
Defendant tobacco company contends that if the FCLAA’s ban on state
regulation of “promotion” of cigarettes does not include a ban on state regulation
of free distribution of cigarettes, it will have little effect. Defendant acknowledges
20

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that section 1334 will still ban state regulation of promotional activities, such as
sponsorship of sports events, that do not involve free distribution of cigarettes.
But defendant argues that free distribution of cigarettes is the most important
method of promoting cigarettes sales and use, because permitting a prospective
consumer to try a product and judge its quality is the best way to induce the
customer to buy the product.
Defendant’s argument actually points to the significant distinction between
free distribution on the one hand, and a sports event sponsorship or similar
promotional activity on the other. Because it involves distributing cigarettes
directly to the recipient, instead of merely trying to induce the recipient to
purchase cigarettes, free distribution of cigarettes presents the more immediate
risk of use. Distribution of cigarettes in any form, whether free of charge, sold at a
discount, or sold at full retail price, creates the same health hazard, and should be
equally subject to state regulation.
“[I]t is equally well established that ‘[c]onsideration of issues arising under
the Supremacy Clause “start[s] with the assumption that the historic police powers
of the States [are] not to be superseded by . . . Federal Act unless that [is] the clear
and manifest purpose of Congress.” ’ ” (Dowhal v. SmithKline Beecham
Consumer Healthcare (2004) 32 Cal.4th 910, 923, quoting the high court’s
decision in Cipollone, supra, 505 U.S. at p. 516; see Bates v. Dow Agrosciences
LLC (2005) 125 S.Ct. 1788, 1801.) The high court’s majority opinion in Lorillard
(supra, 533 U.S. at pp. 541-542), and the plurality opinions in both Medtronic
(supra, 518 U.S. at p. 475) and Cipollone (supra, 505 U.S. at p. 505) all endorse
21

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that principle.7 We here find no “clear and manifest purpose of Congress” to bar
state regulation of the nonsale distribution of cigarettes to minors or adults.
IV. Excessiveness of Fine
Subdivision (d) of section 118950 provides that anyone violating this
section is liable for “a civil penalty of not less than two hundred dollars ($200) for
one act, five hundred dollars ($500) for two acts, and one thousand dollars
($1,000) for each subsequent act constituting a violation.” Each distribution of a
single package, coupon, or rebate offer is considered a separate violation. (Ibid.)
Based on defendant tobacco company’s distribution of free cigarettes at six events
in 1999, the trial court fined defendant $14,826,200.
Defendant argued in the trial court that it had attempted in good faith to
comply with section 118950. Defendant and the Attorney General exchanged
letters in early November of 1999 concerning defendant’s plan to distribute
cigarettes at auto races in Pomona on November 12 through 14. Defendant
offered to locate its booth within an opaque tent with “no signage of any nature on
the outside of the tent.” Defendant added: “We will, of course, continue to guard
rigorously access to the tent so that only smokers twenty-one years of age or older
can enter.” The Attorney General responded: “This addresses our concerns about
the . . . booths as a locus of tobacco advertising and as a source of youth exposure
(visual and auditory) to free sampling activity. We appreciate your making this
important change in your marketing and promotional practices.”
Defendant maintains that these letters show that in 1999, when the events at
issue occurred, the Attorney General considered defendant’s conduct to be

7
Justices Scalia and Thomas disagreed with the presumption against
preemption of state police power measures. (See Cipollone, supra, 505 U.S. at
p. 544 (conc. opn. of Thomas, J., joined by Scalia, J.).)
22

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protected by the safe harbor provision, section 118950, subdivision (f), which
protects distribution on leased property form which minors are excluded. It claims
that the Attorney General’s later change of position and filing of charges took
defendant by surprise. Defendant also accuses the Attorney General of delaying,
until 2001, initiation of legal action against defendant to induce it to continue to
distribute free cigarettes at various events, because under section 118950,
subdivision (d), each distribution would increase the amount of the fine defendant
might have to pay.
The trial court, however, concluded that “[g]iven the mandatory nature of
the fines, [defendant’s] good faith is irrelevant.” The Court of Appeal agreed,
rejecting defendant’s contention that the amount of the fine violated the federal
and state Constitutions.
The Eighth Amendment to the United States Constitution states:
“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and
unusual punishments inflicted.” (Italics added.) “The Due Process Clause of the
Fourteenth Amendment to the Federal Constitution . . . . makes the Eighth
Amendment’s prohibition against excessive fines and cruel and unusual
punishments applicable to the States. [Citation.] The Due Process Clause of its
own force also prohibits the States from imposing ‘grossly excessive’ punishments
. . . .” (Cooper Industries, Inc. v. Leatherman Toolgroup, Inc. (2001) 532 U.S.
424, 433-434.)
The California Constitution contains similar protections. Article I, section
17, prohibits “cruel or unusual punishment” and “excessive fines”; article I,
section 7, prohibits the taking of property “without due process of law.”
The Court of Appeal here addressed separately whether the $14,826,200
fine was unconstitutionally excessive and whether it denied defendant due process.
A separate analysis of the two constitutional provisions is, however, unnecessary.
23

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Due process analysis can be important when a defendant claims that a punitive
damage award is unconstitutional, because the United States Supreme Court has
held that the excessive fines clause of the Eighth Amendment to the federal
Constitution does not apply to punitive damages. (Browning-Ferris Industries of
Vt., Inc. v. Kelco Disposal, Inc. (1989) 492 U.S. 257, 263-264.) But here the case
involves a civil penalty subject both to the state and the federal constitutional bans
on excessive fines as well as state and federal provisions barring violations of due
process. It makes no difference whether we examine the issue as an excessive fine
or a violation of due process.
The leading United States Supreme Court case on the Eighth Amendment’s
prohibition of excessive fines is United States v. Bajakajian (1998) 524 U.S. 321
(Bajakajian), which involved a federal statute (31 U.S.C. § 5316(a)) requiring any
person transporting more than $10,000 out of the United States to file a report with
the United States Customs Service. Bajakajian attempted to take $357,144 out of
the country without filing a report. The government claimed that the entire
$357,144 was forfeited.
The high court pointed out that “[t]he touchstone of the constitutional
inquiry under the Excessive Fines Clause is the principle of proportionality.”
(Bajakajian, supra, 524 U.S. at p. 334.) It then set out four considerations: (1) the
defendant’s culpability; (2) the relationship between the harm and the penalty;
(3) the penalties imposed in similar statutes; and (4) the defendant’s ability to pay.
(Id. at pp. 337-338; see City and County of San Francisco v. Sainez (2000) 77
Cal.App.4th 1302, 1320-1322 (Sainez).) After reviewing those considerations, the
high court held that the forfeiture of Bajakajian’s currency constituted an
“excessive fine” barred by the Eighth Amendment.
Also pertinent here is this court’s decision in Hale v. Morgan (1978) 22
Cal.3d 388. It involved Civil Code section 789.3, providing for a civil fine of
24

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$100 a day against any landlord who willfully deprived a tenant of utility services
for the purpose of evicting the tenant. Hale had moved his trailer into Morgan’s
mobile home park without Morgan’s permission, but the parties agreed that Hale
could stay if he paid rent. Hale never paid any rent, however, and eventually
Morgan cut off Hale’s utility services. When Hale finally moved out, services had
been disconnected for 173 days, so the trial court assessed a fine of $17,300. We
held the fine violated the due process clauses of the state and federal Constitutions,
citing considerations similar to those the United States Supreme Court discussed
in its 1998 decision in Bajakajian, supra, 524 U.S. 321. (See Hale v. Morgan,
supra, 22 Cal.3d at pp. 394-398.) Justice Newman’s concurrence in Hale
expressed the view that the fine also violated the state constitutional provision
barring excessive fines. (Id. at pp. 407-408 (conc. opn. of Newman, J.).)
Here, the Court of Appeal followed the high court’s proportionality
analysis in Bajakajian, but defendant challenges its analysis of culpability.
Defendant maintains that it acted at all times in a reasonable and good faith belief
that its 1999 conduct in distributing cigarettes from an enclosed tent or booth was
protected by the safe harbor provision of section 118950, subdivision (f). (See our
discussion of the November 1999 exchange of letters between defendant and the
Attorney General, p. 22, ante.) Defendant asserts that it set aside specific places to
distribute cigarettes and hired security guards to exclude nonsmokers and minors
by requiring each person entering the tent or booth to already have a pack of
cigarettes and to present identification showing proof of age. When the Attorney
General filed this lawsuit in 2001, defendant stopped distributing free cigarettes.
The trial court and the Court of Appeal, however, viewed defendant’s
asserted good faith as irrelevant. Both courts relied on this language from our
decision in Hale v. Morgan, supra, 22 Cal.3d at page 396: “[A] constitutional
distinction between those persons who have actual knowledge of a law and those
25

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who do not, directly offends the fundamental principle that, in the absence of
specific language to the contrary, ignorance of a law is not a defense to a charge of
its violation.”
The quoted language from Hale v. Morgan, however, did not relate to the
question whether the fine imposed on defendant landlord in that case was
excessive or deprived the defendant of due process of law. It related, instead, to
an entirely different issue. The defendant there mistakenly contended that because
the statute only imposed a fine for “willfully” depriving a tenant of utility services
(Civ. Code, § 789.3), it discriminated in favor of those defendants whose acts were
not willful because they were ignorant of the law. We rejected that argument,
explaining that the term “willful” required only an intentional act, not knowledge
of the act’s illegality, and that ignorance of illegality was not a defense. Landlords
who intentionally cut off a tenant’s utility services were liable for the statutory
fine whether or not they knew their action was illegal. (Hale v. Morgan, supra, 22
Cal.3d at pp. 395-396.)
Hale
itself noted the relevance of good faith to the determination whether a
fine or penalty is excessive or is a denial of due process. It pointed out that the
defendant landlord was “unsophisticated” and had been provoked by the plaintiff
tenant into terminating the utility service by the tenant’s obstinate refusal either to
move or to pay rent. (Hale v. Morgan, supra, 22 Cal.3d at p. 388.) And in a more
recent decision, Lusardi Construction Co. v. Aubry (1992) 1 Cal.4th 976, we
observed that when a contractor attempted reasonably and in good faith to comply
with prevailing wage laws, equitable considerations might preclude imposition of
statutory penalties. Thereafter, in People ex rel. Lungren v. Superior Court, supra,
14 Cal.4th at page 314, footnote 8, we noted that the defendants’ good faith belief
“that they were not violating [the statute] . . . [could] make the imposition of
statutory penalties a violation of defendants’ due process rights.”
26

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Court of Appeal decisions also point to the relevance of a defendant’s lack
of good faith in supporting imposition of a large fine. For instance, in Sainez,
supra, 77 Cal.App.4th at page 1316, the Court of Appeal noted the defendant’s
failure to cease its unlawful conduct when notified the conduct was illegal as one
reason for upholding the penalty. And in People ex rel. Bill Lockyer v. Fremont
Life Ins. Co. (2002) 104 Cal.App.4th 508, 524, the Court of Appeal upheld a $2.5
million civil penalty, observing that the defendant insurer continued to sell policies
after it had been notified by the Department of Insurance that the policy language
was deceptive.
For the reasons given above, we here conclude that, although ignorance of
the law is not a defense to a violation of section 118050, a defendant’s good faith
or bad faith is relevant to the evaluation of the fine assessed against the defendant.
Defendant’s claim that the Attorney General was aware of defendant’s
nonsale distribution of cigarettes, but delayed telling defendant that it considered
defendant’s actions to be illegal, is also relevant to culpability. Defendant asserts
that it halted its free distributions of cigarettes immediately after the Attorney
General, by bringing this action, put defendant on notice that its actions might be
illegal, but by that time many thousands of cigarettes had been distributed and a
sizable potential fine had accrued. In Walsh v. Kirby (1974) 13 Cal.3d 95, when the
Department of Alcoholic Beverages accumulated evidence of numerous violations
before bringing suit, we invalidated the fine because it resulted from the
government’s practice of accumulating “different but essentially identical
violation[s], before it filed its accusation charging the licensee with the whole series
of violations and assessing concomitant cumulative penalties.” (Id. at p. 98.) Thus,
if defendant here can show in the trial court that delay by the Attorney General
contributed to the size of the fine levied against defendant, that fact would also be
relevant in determining whether the $14,826,200 fine was excessive.
27

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The Attorney General disputes defendant’s assertion that defendant acted
reasonably and in good faith in distributing free cigarettes. The Attorney General
also challenges defendant’s assertion that the Attorney General delayed filing this
lawsuit in order to let the statutory penalties accumulate against defendant, asserting
that he first learned of most of defendant’s activities through discovery in this case.
The record thus reveals triable issues of material fact relating to defendant’s
good faith and to the alleged delay by the Attorney General in bringing this lawsuit.
The trial court, however, considered those issues irrelevant to the amount and
validity of the $14,826,200 it imposed on defendant. We disagree, and hold that the
trial court erred in granting the Attorney General’s motion for summary judgment.
(See O’Riordan v. Federal Kemper Life Assurance (2005) 36 Cal.4th 281, 289.)
Ordinarily a reviewing court, having examining the relevant considerations,
can decide for itself whether a fine or penalty is unconstitutionally excessive.
(Cooper Industries, Inc. v. Leatherman Toolgroup, Inc., supra, 532 U.S. at p. 435;
Bajakajian, supra, 524 U.S. at pp. 336-337, fn. 10.) But that is not the case here.
Because defendant’s assertions raise factual issues relevant to the question whether
the $14,826,200 fine the trial court assessed was unconstitutionally excessive, the
truth of those assertions would have to be resolved in the trial court before an
appellate court could determine whether the fine was unconstitutionally excessive.
V. DISPOSITION
We resolve the issues before us as follows: (1) Defendant’s conduct is not
protected by the “safe harbor” provision of section 118950, subdivision (f), which
permits nonsale distribution on public grounds leased for private functions to
which minors are denied access. (2) Section 118950 is not preempted by the
FCLAA’s bar on state regulation of “advertising or promotion of any cigarettes
the packages of which are labeled in conformity with the provisions of [the
FCLAA].” (15 U.S.C. § 1334(b), italics added.) (3) The $14,826,200 fine
28

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imposed against defendant may violate federal and state constitutional prohibitions
against “excessive fines.” (U.S. Const., 8th Amend; Cal. Const., art. I, § 17.)
Resolution of this latter issue will require a trial court hearing to determine
whether defendant believed, in good faith, that its conduct conformed to section
118950, and whether the Attorney General delayed notifying defendant that the
conduct violated that statute in order to allow the penalties to accumulate.
The judgment is reversed to the extent that it imposed a fine of $14,826,200
against defendant, and the Court of Appeal is directed to remand the case to the
trial court to resolve any disputed issues of fact relating to the assessment of the
fine. In all other respects, the judgment is affirmed.
KENNARD, J.
WE CONCUR:

GEORGE, C. J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
MORENO, J.
BEDSWORTH, J.*

*
Associate Justice of the Court of Appeal, Fourth Appellate District,
Division Three, assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
29

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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. R.J. Reynolds Tobacco Company
__________________________________________________________________________________

Unpublished Opinion

NP opn. filed 10/3/03 – 2d Dist., Div. 2
Original Appeal
Original Proceeding
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S121009
Date Filed: December 22, 2005
__________________________________________________________________________________

Court:

Superior
County: Los Angeles
Judge: Conrad Richard Aragon

__________________________________________________________________________________

Attorneys for Appellant:

Howard Rice Nemerovski Canady Falk & Rabin, Marc Haber, Chandra Miller Fienen; Dechert LLP and
H. Joseph Escher III for Defendant and Appellant.

Fred J. Hiestand for The Civil Justice Association of California as Amicus Curiae on behalf of Defendant
and Appellant.

Mayer, Brown, Rowe & Maw, Kenneth S. Geller and Donald M. Falk for The Product Liability Advisory
Council as Amicus Curiae on behalf of Defendant and Appellant.
__________________________________________________________________________________

Attorneys for Respondent:

Bill Lockyer, Attorney General, Manuel M. Medeiros, State Solicitor General, Richard M. Frank and Tom
Greene, Chief Assistant Attorneys General, Dennis Eckhart, Assistant Attorney General, Peter M. Williams
and Michelle Fogliani, Deputy Attorneys General, for Plaintiff and Respondent.

David C. Vladek; Law Offices of Marvin E. Krakow, Marvin E. Krakow; Alan B. Morrison; Donald W.
Garner; Speir & Whitney and Richard J. Whitney for Public Citizen, Inc., as Amicus Curiae on behalf of
Plaintiff and Respondent.

John Cary Sims; David C. Vladeck, Richard McKewen; and Brian Wolfman for Public Citizen, Inc., and
National Center for Tobacco-Free Kids as Amici Curiae on behalf of Plaintiff and Respondent.

Catherine I. Hanson and Hans P. Lee for California Medical Association, American Academy of Pediatrics,
American Cancer Society, American Heart Association, American Lung Association and American
Medical Association as Amici Curiae on behalf of Plaintiff and Respondent.

Colantuono & Levin, Michael G. Colantuono and Hannah Bentley for League of California Cities,
California State Association of Counties and Tobacco Control Legal Consortium as Amici Curiae on behalf
of Plaintiff and Respondent.
1

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Counsel who argued in Supreme Court (not intended for publication with opinion):

H. Joseph Escher III
Dechert LLP
One Market
Steuart Tower, Suite 2500
San Francisco, CA 94105-1416
(415) 262-4500

Dennis Eckhart
Assistant Attorney General
1300 I Street
Sacramento, CA 94244-2550
(916) 323-3770

2

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Opinion Information

Date:	Docket Number:
Thu, 12/22/2005	S121009

Disposition
Dec 22 2005	Opinion: Affirmed in part/reversed in part

Dockets
Dec 8 2003	Petition for review filed   by counsel for aplt.(R.J. Reynolds Tobacco Co.)
Dec 9 2003	Received Court of Appeal record   one doghouse.
Dec 9 2003	Record requested
Dec 29 2003	Answer to petition for review filed   by resp (filed in Sac)
Dec 29 2003	Request for extension of time filed   by aplt to file the reply to the answer, to Jan 16.
Jan 7 2004	Extension of time granted   to 1-16-04 for aplt to file the answer to the petn for review.
Jan 16 2004	Reply to answer to petition filed
Jan 28 2004	Petition for Review Granted (civil case)   George, C.J., was absent and did not participate. Votes: Werdegar, A.C.J., Kennard, Baxter, Chin, Brown, and Moreno, JJ.
Feb 4 2004	Certification of interested entities or persons filed   by counsel for aplt
Feb 5 2004	Received Court of Appeal record   2 doghouses
Feb 27 2004	Opening brief on the merits filed   by aplt
Mar 5 2004	Request for extension of time filed   for aplt to file the answer brief on the merits, to 4-27
Mar 10 2004	Extension of time granted   to 4-27-04 for resp to file the answer brief on the merits.
Apr 27 2004	Answer brief on the merits filed   by resp
May 17 2004	Reply brief filed (case fully briefed)   by counsel for (R.J. Reynolds Tobacco Co.)
Jun 10 2004	Received application to file Amicus Curiae Brief   from Public Citizen and National Center for Tobacco-Free Kids , in support of resp. (brief and declaration of service under separate cover).
Jun 10 2004	Application to appear as counsel pro hac vice (granted case)   by David C. Vladeck to appear on behalf of A/C applicant Public Citizen, et al.
Jun 11 2004	Received application to file Amicus Curiae Brief   League of California Cities, etal w/reqt for judicial notice
Jun 14 2004	Received application to file Amicus Curiae Brief   from Calif. Medical Association, et al. in support of respondent.
Jun 16 2004	Received application to file Amicus Curiae Brief   Product Liability Advisory Council [in support of aplt]
Jun 17 2004	Received application to file Amicus Curiae Brief   from the Civil Justice Association of Calif. in support of aplt. (40k)
Jun 29 2004	Permission to file amicus curiae brief granted   by the California Medical Association et al in support of resp. Answers may be filed w/in 20 days.
Jun 29 2004	Amicus curiae brief filed   by the Calif. Medical Assn. et al in support of resp.
Jun 29 2004	Permission to file amicus curiae brief granted   by the League of California Cities et al in support of resp. Answers may be filed w/in 20 days.
Jun 29 2004	Amicus curiae brief filed   by League of Calif. Cities et al in support of resp.
Jun 29 2004	Request for judicial notice filed (granted case)   by A/C League of Calif Cities, et al.
Jun 29 2004	Permission to file amicus curiae brief granted   by Public Citizen and National Center for Tobacco-Free Kids in support of resp. Answers may be filed w/in 20 days.
Jun 29 2004	Amicus curiae brief filed   by Public Citizen and Nat. Center for Tobacco-Free Kids in support of resp.
Jun 29 2004	Application to appear as counsel pro hac vice granted   David C. Vladeck to appear for A/C Public Citizen and Nat. Center for Tobacco-Free Kids.
Jun 29 2004	Permission to file amicus curiae brief granted   by the Civil Justice Legal Foundation of Calif. in support of aplt. Answers may be filed w/in 20 days.
Jun 29 2004	Amicus curiae brief filed   by the Civil Justice Legal Foundation of Calif. in support of aplt.
Jun 29 2004	Permission to file amicus curiae brief granted   by the Product Liability Advisory Council in support of aplt. Answers may be filed w/in 20 days.
Jun 29 2004	Amicus curiae brief filed   by the Product Liability Advisory Council in support of aplt.
Jul 2 2004	Filed:   errata to A/C brief of Calif. Medical Assn. et al
Jul 19 2004	Response to amicus curiae brief filed   by Deft-aplt. R.J. Reynolds to a/c briefs of Public Citizen, League of Calif. Cities and Calif. Medical Assn.
Jul 20 2004	Response to amicus curiae brief filed   by Pltf-resp People to the a/c briefs of Civil Justice Assn. and Product Liability Advisory Council. (40k)
Feb 7 2005	Filed:   letter from Calif. A.G.
May 25 2005	Filed:   letter from Calif. A.G.
Jun 3 2005	Filed:   Aplt's response to letter from A.G.
Aug 31 2005	Case ordered on calendar   10/5/2005, 9am, in Redding, City Hall
Sep 21 2005	Association of attorneys filed for:   atty H.J. Escher III for appellant
Oct 5 2005	Cause argued and submitted
Dec 22 2005	Opinion filed: Affirmed in part, reversed in part   to the extent that it imposed a fine of $14,826,200 against defendant, and the Court of Appeal is directed to remand the case to the trial court to resolve any disputed issues of fact relating to the assesment of the fine. Majority Opinion by Kennard, J. ----- Joined by George, CJ., Baxter, Werdegar, Chin, Moreno, JJ and Bedsworth, J., Associate Justice of the Court of Appeal, Fourht Appellate District, Division Three.
Dec 30 2005	Filed:   letter from counsel for The People bringing the court's attention to two inadvertent misstatements of fact in the opinion filed on 12/22/05. Second, The People ask the Court to clarify the circumstances in which to permit inquiry into alleged delay in bringing a civil law enforcement action. (to court)
Jan 4 2006	Filed:   letter from Appellant, R.J. Reynolds in response to letter received 12-30-05 from respondent, The People.
Jan 18 2006	Opinion modified - no change in judgment   The opinion in the above-entitled case, filed on December 22, 2005 and appearing at 37 Cal.4th 707[ ], is hereby modified as follows: 1. The second sentence of the Factual and Procedural Background, on page 713 [page 2 of the filed opinion] is modified to state that the defendant gave away cartons and packages containing a total of 108,155 packs of cigarettes. 2. The first sentence of footnote 5 on page 723 [page 17 of the filed opinion] is modified to insert the word "and" and to strike the words "and certain point-of-sale advertising," so that it reads: "The Massachusetts Attorney General's regulations also barred free distributions of cigarettes in public places, and self-service displays of cigarettes." This modification does not affect the judgment. Chin, J., was absent and did not participate.
Jan 19 2006	Application to stay issuance of remittitur filed   appellant R. J. Reynolds Tobacco. by counsel. H. Joseph Escher.
Feb 1 2006	Application to stay issuance of remittitur granted   Appellant's motion to stay issuance of remittitur is granted. Issuance of the remittitur in the above-entitled cause is stayed to permit appellant to file a petition for writ of certiorari with the Supreme Court of the United States. Upon the filing of that petition, the issuance of the remittitur is further stayed until final determination of the certiorari proceeding. If a petition for writ of certiorari is not submitted within the time prescribed, this stay will terminate when the time for submitting the petition has expired. Chin, J., was absent and did not participate.
Feb 15 2006	Note: Mail returned (unable to forward)
Apr 5 2006	Stipulation filed   to lift stay and issue remittitur Dennis Eckhart Senior Assistant Attorney General for Respondent, The People H. Joseph Escher III for Appellant, R.J. Reynolds Tobacco Co.
Apr 19 2006	Order filed   Pursuant to the joint stipulation filed on April 5, 2006 to lift the stay and issue the remittitur, the order filed on February 1, 2006 granting appellant's motion to stay the issuance of the remittitur is vacated. Issuance of the remittitur in the above-entitled cause is ordered forthwith.
Apr 19 2006	Remittitur issued (civil case)
Apr 26 2006	Returned record
May 10 2006	Received:   receipt for remittitur from CA 2/2.

Briefs
Feb 27 2004	Opening brief on the merits filed
Apr 27 2004	Answer brief on the merits filed
May 17 2004	Reply brief filed (case fully briefed)
Jun 29 2004	Amicus curiae brief filed
Jun 29 2004	Amicus curiae brief filed
Jun 29 2004	Amicus curiae brief filed
Jun 29 2004	Amicus curiae brief filed
Jun 29 2004	Amicus curiae brief filed
Jul 19 2004	Response to amicus curiae brief filed
Jul 20 2004	Response to amicus curiae brief filed

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