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Kessler's extraterritorial tobacco ruling

Brooklyn lawprof Anthony Sebok observes, in regard to Judge Kessler's ruling in the federal tobacco suit:

From the industry's perspective, a further, and much more disturbing, potential result of the judge's order is that it will have to conform to her demands overseas....

Obviously, conduct performed in the United States that has an effect overseas can be enjoined by a federal judge. But what about an injunction that separately reaches domestic conduct, and identical conduct occurring overseas? ...various decisions, especially in the area of antitrust, have held that the power of Congress to control purely foreign conduct is quite limited.

Furthermore, there is a significant comity question. In many foreign countries, tobacco sales are controlled by the state. Questions about packaging, and especially the health statements on packaging, are often regulated by foreign governments. ...Can Judge Kessler tell the French subsidiary of Philip Morris that it must put an "onsert" in its packages that announces that the American tobacco companies lied in the past? Can she prohibit the use of the word "light" in a package printed and marketed in Turkey? Maybe, but I think it is unlikely.



Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.