 100th Anniversary
in 2009 of
Michigan's 1909 Consumer Protection
Deleterious Cigarette Ban Law
 Michigan law MCL § 750.27, MSA § 28.216, says:
"Any person within the state who manufactures, sells or gives to anyone,
any cigarette containing any ingredient deleterious to health or foreign to tobacco, shall be guilty of a misdemeanor." |
Cigarettes notoriously contain deleterious ingredients. The law wording covers three aspects, (1) manufacture, (2) sales, and (3) give-aways. Manufacture includes cigarette making whether one cigarette at a time or in quantity. Sales and give-aways include individual cigarettes, packs, and cartons.
Shortly before the 1909 law was passed, the U.S. Supreme Court in the case of Felsenheld / Merry World Tobacco v United States, 186 US 126; 22 S Ct 740; 46 L Ed 1085 (1902), upheld confiscating tobacco for having anything other than tobacco in the packages. Thus the Michigan law of 1909, banning "fereign" substances, was a logical result.
The law's wording is comprehensive, it includes and bans all three aspects, (1) manufacture, (2) sales, and (3) give-aways. So the writer contacted Michigan Governor John Engler (1 Jan 1991 - 31 Dec 2002) about the law. Here is the reply: |
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State of Michigan
John Engler, Governor
Department of Community Health
Lewis Cass Building
Lansing, Michigan 48313
James K. Haveman, Jr., Director
July 9, 1997
Leroy J. Pletten, Ph.D.
The Crime Prevention Group
8401 18 Mile Road #29
Sterling Heights, Michigan 48313-3042
Dear Dr. Pletten:
 Thank you for taking the time to write Governor Engler. Since the Department of Community Health is responsible for health concerns, he has asked me to respond to your suggestion to begin enforcing [MCL § 750.27] the law that prohibits the sale of adulterated cigarettes.
Interestingly, the law does appear to prohibit the sale of cigarettes with any ingredient foreign to tobacco or any ingredient deleterious to health. Although we are not privy to the list of ingredients that are added to cigarettes, we do know that a number of additives are used. A bill has been introduced in our legislature (House Bill 4778) that would require tobacco companies to list the ingredients that have been added. The department is presently doing an analysis of the bill. Additionally, we are closely monitoring and involved in national discussions concerning tobacco settlements.
Again, thank you for your interest and for sharing your suggestion. I will share a copy of your letter with the office of the Attorney General.
Cordially,
/s/James K. Haveman, Jr.
James K. Haveman, Jr.
JH/ms
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Emphasis was added above in red.
This law was passed to make Michigan smoke-free everywhere, pursuant to the wisdom of that era deeming it more efficient to criminalize only at the manufacture, sale, and give-away level, those few, vs. criminalizing millions for useage.
To see Governor John Engler's subsequent 22 August 1997 finding of a cigarette smuggling emergency, click here.
To see the DCH Director's 11 September 1997 letter, click here.
To see Governor John Engler's 11 January 1999 message overview of the cigarette hazard to Michigan, click here.
To see Gov. Engler's Executive Order 1992-3 (18 March 1992) banning smoking in state buildings, prohibiting tobacco sales on state property, and ending production of cigarettes by state prisons, click here.
To see Gov. Engler's 16 December 1992 veto message opposing a 'smokers' rights" bill, click here.
To see the successor DCH's 17 April 2003 letter on second-hand smoke, click here.
For examples of cigarettes' deleterious ingredients, click here. The 1989 Surgeon General Report listed a number of them:
| acetaldehyde (1.4+ mg) | arsenic (500+ ng) | benzo(a)pyrene (.1+ ng) |
| cadmium (1,300+ ng) | crotonaldehyde (.2+ µg) | chromium (1,000+ ng) | | ethylcarbamate 310+ ng) | formaldehyde (1.6+ µg) | hydrazine (14+ ng)
| lead (8+ µg) | nickel (2,000+ ng) | radioactive polonium (.2+ Pci) | |
By federal law 15 § 1331, et seq., cigarettes have a warning label. The warning label itself establishes deleteriousness, said the Tenth Circuit court in Grusendorf v City of Oklahoma City, 816 F2d 539, 543; 2 IER Cases (BNA) 51 (CA 10, 1987):
| "We need look no further . . . than the [15 USC § 1333] Surgeon General's warning on the side of every box of cigarettes sold in this country that cigarette smoking is hazardous to health." |
For a list of cigarette effects, click here.
"The normal use of cigarettes is known by ordinary consumers to present grave health risks . . .'tobacco has been used for over 400 years . . . [k]nowledge that cigarette smoking is harmful to health is widespread and can be considered part of the common knowledge,'" Roysdon v R. J. Reynolds Tobacco Co, 849 F2d 230, 236 (CA 6, 1988).
"For almost four hundred years, European and American physicians have observed the toxic effects of tobacco . . . . physicians have known for centuries that smokers were daily taking into their bodies large quantities of one of the most poisonous substances known to man," says Frank L. Wood, M.D., What You Should Know About Tobacco (Wichita, KS: The Wichita Publishing Co, 1944), p 67. A person "who smokes forty cigarettes daily absorbs nearly a pound of nicotine annually. This is enough to kill at least eight thousand cats"—p 123.
Judicial notice of cigarettes' "inherent" deleteriousness has long been taken, e.g., in Austin v State, 101 Tenn 563; 566-567; 48 SW 305, 306; 70 Am St Rep 703; 50 LRA 478 (1898) affirmed 179 US 343; 21 S Ct 132; 45 L Ed 224 (1900). Tennessee's Supreme Court said in Austin:
| "[C]igarettes . . . are . . . wholly noxious and deleterious to health. Their use is always harmful; never beneficial.
"They possess no virtue, but are inherently bad, and bad only . . . widely condemned as pernicious altogether.
"Beyond question, their every tendency is toward the impairment of physical health and mental vigor. . . .
"Courts are authorized to take judicial cognizance of . . . those facts which, by human observation and experience, have become well and generally known to be true. . . . cigarettes are wholly noxious and deleterious and . . . an unmitigated evil." |
"The physician must recognize the fact that smoking is a universal affair . . . harmful . . . to normal people. . . . [changing them into injured category]."—Herbert F. Schwartz, M.D., "Smoking and Tuberculosis," 45 N Y St J Med (#14) 1539-1542 (15 July 1945).
| "The danger cigarettes . . . pose to health is, among others, a danger to life itself . . . a danger inherent in the normal use of the product, not one merely associated with its abuse or dependent on intervening fortuitous events.
"It threatens a substantial body of the population, not merely a peculiarly susceptible fringe group."—Banzhaf v Federal Communications Commission, 132 US App DC 14, 29; 405 F2d 1082, 1097 (1968) cert den 396 US 842 (1969) (upholding the concept of cigarettes' universal deleteriousness). |
In fact, cigarettes threaten everyone in America. To find “the purest nonsmoking population that can be obtained in the USA,” there was ONLY “the Amish population . . . in Lancaster County [Pennsylvania].”—G. H. Miller, Ph.D., “Lung Cancer: A Comparison of Incidence Between the Amish and Non-Amish in Lancaster County,” 76 J Indiana State Med Assn (#2) 121-123 (February 1983). Everyone else is being "smoked" to a greater or lesser extent.
"Virtually everyone in the United States is at some risk of harm from exposure to secondhand smoke. The reason is that nearly everyone is exposed to tobacco smoke, and there is no evidence of a threshold level of exposure below which the exposure is safe."—Ronald M. Davis, M.D., "Exposure to Environmental Tobacco Smoke," 280 J Am Med Assn (#22) 1947-1949 (9 Dec 1998).
Wherefore, "the detrimental effects of cigarette smoking on health are beyond controversy." Larus and Bro Co v Fed Communications Commission, 447 F2d 876, 880 (CA 4, 1971).
The detriment, hazard, danger, violates the Constitutionally protected rights against hazards, to pure air, and to put out fires.
The detriment, hazard, danger, violates the federal Occupational Safety and Health Act (OSHA), 29 USC § 651 - § 678. See pertinent case law:
| National Realty and Construction Co, Inc v Occupational Safety and Health Review Commission, 160 US App DC 133; 489 F2d 1257 (1973) (the general duty clause with the safety duty adjective “free” (meaning “free” of banned hazards) is “unqualified and absolute,” such that hazards must be "excluded" from the workplace. Obeying the “absolute” duty is reasonable)
International Union, UAW v General Dynamics Land Systems Division, 259 US App DC 369; 815 F2d 1570 (1987) cert den 484 US 976; 108 S Ct 485; 98 L Ed 2d 484 (1987) (both specific standards and the "general duty clause" must be obeyed)
American Textile Mfrs. Inst v Donovan, 452 US 490, 509; 101 S Ct 2478; 69 L Ed 2d 185 (1981) (Safety is "above" all "other considerations")
American Smelting & R. Co v Occ. Safety & Health Rev Comm, 501 F2d 504, 515 (1974) ('monitoring,' whether called 'biological' or by another term, is not 'preventing' and 'suppressing' the hazard, but rather merely observing it continue. "Biological monitoring" is inadequate when it does "not eliminate or even reduce the hazard," but merely reveals it). |
It is unlawful to take concerted action, engage in conspiracy, to violate federal legal rights, as per laws such as 18 USC § 241.
| With all Michigan's writings and findings showing cigarette deleteriousness, Michigan is estopped from claiming to the contrary! |
In brief, it is not necessary to re-litigate anew, in each separate case, the issue, "are cigarettes deleterious?" The fact of deleteriousness is already conclusively established for all cases. This is like the fact of the earth being round, no need to re-prove that fact anew in each and every case!!
What Michigan has done on cigarettes, parallels what California has done on cars. Whatever may be the 'typical' car, 'typical' cigarette, as sold nationwide, that's not good enough for our state. In our state, they must meet our standards.
Says Michigan, You want to make or sell cigarettes? Here? in our state?
Not with foreign ingredients (adulterants).
Not with deleterious ingredients.
Of course, as everyone knows, ALL cigarettes have deleterious ingredients! The warning label makes that fact clear! by itself, without more evidence. And there is much more evidence! as standard cigarette ingredients data shows, as centuries of medical data show.
For an analysis of the Michigan law—with some examples of cigarettes' deleterious ingredients, emissions, and adulterants, and resultant adverse effects, click here. For historic early data, click here.
The above-listed site includes a bibliography of pre-1909 writings and pre-1909 court precedents identifying deleterious effects of tobacco, by 1909 already LONG KNOWN in the medical profession, and of which, judicial notice had already long been taken.
For a complete list of Michigan cases related to tobacco issues, click here. For background on the federal OSHA law banning hazards, click here and here. (This law too is already passed, merely needs enforcing.)
For the dual rights to 'put out fires' and to 'pure air' that the Michigan law institutionalizes, click here. The Michigan law institutionalizes the already existing constitutional right [e.g., Fifth, Seventh, and Ninth Amendments] to pure air. No cigarettes = no cigarette smoke in the air!
The rights to pure air and put out fires already long existed. However, those rights are more easily violated without institutionalization. It is harder to control millions of people, than a small number of manufacturers and sellers. So the Legislature wisely chose to institutionalize the already-existing rights, by focusing on manufacturers and sellers. (No doubt it could have banned smoking. New Orleans had suucessfully imposed a no-smoking rule on street-cars, upheld when challenged in State v Heidenhain, 42 La Ann 483; 7 So 621; 21 Am St Rep 388 (1890). And see the even earlier precedent of Commonwealth v Thompson, 53 Mass (12 Metc.) 231 (1847), upholding arrest and conviction of a smoker for smoking outdoors.)
Another benefit is that adults thus set the right example for youth, not manufacturing cigarettes, not selling cigarettes, not giving them away, not using them. For adults to set the right example, was a significant concern of that era, for details, click here.
For the 1889 Michigan House of Representatives' Cigarette Hazards Report, click here.
For the 1897 Iowa cigarette manufacturing and sales ban law that Michigan followed, click here.
For the related 1897 Tennessee cigarette sales ban law, click here.
Note Perkins v Ford Motor Co, et al., Civ No. 86-633018-CZ (Wayne Cty Cir Ct, 25 Nov 1986) (injunction for smoke-free workplace).
Note Opinions of Attorney General 1987-1988, No. 6460, pp 167-171; 1987 Michigan Register 366 (25 Aug 1987) (locating nonsmokers "checkerboard style" does not achieve law compliance). Of course, the law must be obeyed state-wide, not just in scattered locations.
For smokers' rights cases, click here.
For employers' rights' cases and background, click here.
For precedents showing that local governments cannot vote contrary to higher level law, click here.
For pertinent legal terms and their definitions, click here.
For discussion of what cigarettes cost Michigan, their enormous budget-busting costs increasing taxes and fees and obstructing public services, click here. (Readers from other states can use that data, to calculate what cigarettes cost your state).
Cigarette costs to society were already well documented in 1909, e.g., by
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R. Brudenell Carter, M.D., "Alcohol and Tobacco,” 250 Littell's Living Age 479-493 (1906), p 492
Rev. Jenkin Lloyd Jones, Tobacco, the Second Intoxicant (Chicago: Charles H. Kerr & Company, 1893) [Excerpt]
Rev. John B. Wight, Tobacco: Its Use and Abuse (Columbia: L. L. Pickett Pub Co, 1889), pp 26-35
Reps. Jackson, Salisbury, and Baker, Cigarette Hazards Report (Michigan House of Representatives, 11 April 1889)
Chemistry Professor John I. D. Hinds, The Use of Tobacco (Nashville, Tenn: Cumberland Presbyterian Publishing House, 1882), pp 122-125 (and citing data on the pattern of smoking-linked national collapses dating from the Spanish conquistadores' conquest of Mexico, the most major cost of all, national collapse)
Rev. Russell L. Carpenter, A Lecture on Tobacco (1882)
Meta Lander, The Tobacco Problem (Boston: Lee and Shepard, 1882), pp 40-58
James Parton, Smoking and Drinking (Boston: Ticknor and Fields, 1868), pp 34-41
Reuben D. Mussey, M.D., LL.D., Health: Its Friends and Its Foes (Boston: Gould and Lincoln, 1862), pp 112-114
Rev. Benjamin I. Lane, The Mysteries of Tobacco (New York: Wiley and Putnam, 1845), Chapter VII, pp 123-139
William A. Alcott, M.D., The Use of Tobacco: Its Physical, Intellectual, and Moral Effects on The Human System (New York: Fowler and Wells, 1836), Chapter XVII, pp 77-81
Reuben D. Mussey, M.D., LL.D., "Tobacco," Vol. 1, The Boston Observer and Religious Intelligencer (#25) p 200 (Boston, 1835)
Rev. Orin S. Fowler, Disquisition on the Evils of Using Tobacco, and the Necessity of Immediate and Entire Reformation (Providence: S. R. Weeden, 1833), Chapter V, pp 13-19
Rev. Adam Clarke, M.A., LL.D., A Dissertation on the Use and Abuse of Tobacco (1797).
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Michigan should have tens of billions of dollars in its 'rainy day fund,' enough to offset a decade of lowered income. It would have that amount in savings, and should have it.
Why doesn't Michigan have billions in savings? Because of the enormous cost each year, in damages from cigarettes.
And why is that: Due to the criminal negligence and malfeasance-in-office of Michigan officials, their failure and refusal to enforce the law, MCL § 750.38, MSA § 28.227.
Refusing to enforce a law is denial of "honest services" and is illegal.
Tell your politicians; demand enforcement of the deleterious cigarette manufacturing and sales ban law! It's your money, your health, your life!
See also Michigan's advertising ban law MCL § 750.38, MSA § 28.227, that in essence bans cigarette advertising.
Note that due to Michigan's distinctive shape and borders, enforcement is easier than perhaps for other states. Michigan is bordered by large bodies of water on the East and West, and by Canada [with customs inspection] on the North and East.
Only on the South side, are cigarettes typically smuggled [imported] into our state.
Enforcement of MCL § 750.27, MSA § 28.216, can be as simple as
notifying the State Police to interdict and confiscate the arriving cigarette shipments (commonly trucked in via I-75 on Michigan's southern border)
having the State Attorney General obtain an injunction enjoining, banning, violations
and having your local police and sheriff department enforce it. They can do this when enforcing the ban against under-age sales, list that selling as "Count 1," and the violation of this law as "Count 2" (or vice versa).
Enforcement = institutionalizing making Michigan cigarette-smoke free, state-wide. That is as our ancestors, the common law, and lawmakers intended.
The Michigan law institutionalizes federal rights as listed at our pure air site. It is unlawful to take concerted action, engage in conspiracy, to violate federal legal rights, as per laws such as 18 USC § 241. See also 18 USC § 242.
As far as understanding what the law means, the words themselves state the meaning. In matters of statutory construction, courts go by the language of the statute itself. "Absent a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive." Consumer Product Safety Comm'n v GTE Sylvania, Inc., 447 US 102, 108 (1980). See also
Jackson Transit Authority v Transit Union, 457 US 15, 23 (1982);
Bread Political Action Comm. v FEC, 455 US 577, 580 (1982);
Universities Research Assn. v Coutu, 450 US 754, 771 (1982); and
Dawson Chemical Co v Rohm & Haas Co., 448 US 176, 187 (1980).
And, it is a well settled principle that "Expressio
unius est exclusio alterius"; "''to express one thing is to exclude others,'"
Reynolds Alloy Co., 2 Labor Arb. Reports (BNA) 554 (1943).
Sales can be stopped. For example, the N. Y. based Wegman "Supermarket Chain Drops Cigarettes, Tobacco Products" (7 January 2008). The CEO said "we . . . understand the destructive role smoking plays in health." " Company officials acknowledged that tobacco products are a 'very profitable category' but said stocks will not be replenished." If companies will stop selling voluntarily, how much more so, if action were taken by sheriffs and state and local police?
For information on the pending (June 2008) bill (House Bill 4163) to redundantly ban smoking,
click here.
Email@TCPG
Copyright © 1997, 1999, 2003 The Crime Prevention Group
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