Health Care – Page 8 – Marquette University Law School Faculty Blog

Big Tobacco Sues Uruguay

Post author:David R. Papke
Post published:September 30, 2014
Post category:Business Regulation Health Care Public

fda cigarette warning lungs Those who follow efforts to use law to reduce smoking will be aware the United States Court of Appeals for the District of Columbia found in R.J. Reynolds v. FDA, 696 F.3d 1215 (D.C. Cir. 2012) that mandatory graphic imagery on cigarette packs was a violation of commercial speech rights. As a result of the decision, cigarette packs continue to have only prosaic warnings, which go not only unread but also, for the most part, unnoticed.

Foreign countries, of course, are not bound by U.S. law, and Uruguay forged ahead with its own laws requiring graphic warnings. They include photos of decaying teeth, premature babies, and disturbing hospital scenes, with each picture covering 80 percent of each pack. Big Tobacco cannot invoke its commercial speech rights in Uruguay, but Philip Morris has sued Uruguay for $25 million, alleging the required warnings violate treaties protecting intellectual property rights.

The case is in the courts, with former New York City Mayor Michael Bloomberg paying many of Uruguay’s legal costs. Smoking is on the rise in developing countries, and many think the decision in Uruguay will have significant impact on other developing countries’ willingness to require graphic warnings.

For my own part, I strongly endorse the required graphic warnings in the name of social justice. Smoking in both the United States and abroad is increasingly concentrated among poor and working-class men and women, and the health problems associated with smoking are also greater in these sectors of the world population. For the poor and members of the working class, reading skills and even any interest in written texts are limited, but poor and working-class smokers are aware of and receptive to visual imagery. If they could literally see what smoking causes, they might fight harder to break their deathly, addictive habit.

US Supreme Court Review: Two Employee Benefit Cases (Dudenhoeffer and Hobby Lobby)

Post author:Paul M. Secunda
Post published:August 28, 2014
Post category:Business Regulation Corporate Law Health Care Labor & Employment Law Public U.S. Supreme Court

(This is another post in our series, Looking Back at the U.S. Supreme Court’s 2013 Term.) This blog post is the third of three on labor and employment law cases by the United States Supreme Court in the last Term. This post focuses on two employee benefit law/ERISA cases: Fifth Third Bancorp v. Dudenhoeffer and Burwell v. Hobby Lobby Stores, Inc. First, a disclosure: Along with six other law professors, I co-wrote an Amicus Curiae brief in support of the Dudenhoeffer plaintiffs.

Dudenhoeffer involves so-called ERISA stock-drop litigation, which has been rampant in the federal courts for a couple of decades now. The basic formula of these cases is that, as part of the employer-sponsored retirement plan (whether an employee stock ownership plan (ESOP) or a participant-directed 401(k) plan), the employer offers its own stock as either the entire pension plan investment or part of the pension plan investment. When the company goes south and its stock price falls, plan fiduciaries find themselves in a difficult position as far as whether to sell the stock or to hold on to it. This is especially so when the plan fiduciary has conflicting duties as an officer of the company and as a fiduciary of the plan. As a corporate officer, not only is the person supposed to act in the best interests of shareholders to maximize the value of the company, but securities law forbids them to trade stock based on non-public material information. As a fiduciary to the ESOP or 401(k) plan, ERISA gives that same person an obligation to act in the best interest and with the same care as a prudent fiduciary would when making decisions about that employee benefit plan. And in case you are wondering, ERISA Section 408(c)(3) gives employers the ability to assign the same person both officer and plan fiduciary roles or set up so-called “dual-role fiduciaries.”

Majority Opinion on “Obamacare” Doesn’t Lie in Either Extreme

Post author:Alan J. Borsuk
Post published:March 26, 2014
Post category:Health Care Marquette Law School Public

As is so often the case, the focus in news reporting on the fresh results of the Marquette Law School Poll, released on Wednesday, was on the race for governor, with Republican Gov. Scott Walker’s lead over Democratic challenger Mary Burke holding steady from the prior round of polling in January. (Walker led 48 percent to 41 percent this time, compared to 47 percent to 41 percent then.)

But there is a lot more in each round of polling, both results that shed richer light on voters’ views related to candidates and voters’ views on issues. Distinguished Fellow Mike Gousha looks at some of the former in his posting on this blog, which can be found by clicking here. Permit me to look at one aspect of the latter, the results related to the new federal health law, often called Obamacare — results which don’t get much time in the spotlight.

Professor Charles Franklin, director of the Marquette Law School Poll, pointed to one of the most interesting results related to health care in his discussion of the results with Gousha on Wednesday. Put simply: There isn’t much political mileage to be gained from being either strongly in favor or strongly opposed to the federal law. What the majority of those who were polled said they want is to keep the new law but improve it. Specifically, only 8 percent want to keep the law the way it is, only 18 percent want to see it repealed and not replaced. But 52 percent want it improved, while another 18 percent said they want it repealed but replaced with an alternative. That’s 70 percent who want a better plan than Obamacare, but still want a federal health care law (presumably in addition to or expanding on Medicare and Medicaid).