Magazine article Drug Topics

Selling Tobacco to Kids Could Ignite Legal Bomb

Magazine article Drug Topics

Selling Tobacco to Kids Could Ignite Legal Bomb

Article excerpt

Against the backdrop of a study that projected that 68% of American pharmacies illegally sell tobacco products to kids, a law professor warns that such sales may be a lawsuit waiting to happen.

The study could open the door for legal action against pharmacists selling tobacco products to kids, contends Richard Daynard, professor at Northeastern University School of Law in Boston. Product liability could be a basis for action as a breach of the implied warranty that a product sold is not harmful. In addition, he sees the potential for malpractice lawsuits based on the pharmacist's professional status as a health-care provider.

Legal exposure may not end with product liability and malpractice, said Daynard, who is chairman of the Tobacco Products Liability Project, a public health advocacy group that encourages lawsuits against tobacco companies, distributors, and retailers. Negligent entrustment of a dangerous instrumentality to a minor is a legal concept that Daynard believes will come to the forefront. It means that an adult who provides a kid with the means to harm himself or others is liable. For example, a lawsuit can be brought against a parent for giving the car keys to a 14-year-old who then has an accident.

Negligent entrustment suits against pharmacists for selling tobacco to minors is "an area where we'll see some legal action," Daynard predicted. "If a kid later on gets lung cancer or another disease, the pharmacist would be liable for having negligently entrusted the cigarettes to a minor," he said.

"Normally, tobacco companies reimburse sellers for legal damages, but it would be rather embarrassing for the tobacco companies to reimburse pharmacists or other retailers for damages awarded under negligent entrustment. They claim vociferously that they don't want to sell to kids."

The negligent endangerment charge has already been successfully used against a Massachusetts convenience store chain selling tobacco to kids. The suit was settled out of court. The terms, including any monetary award, were sealed, but the chain agreed to demand positive identification from kids.

"It's certainly the intention of our project and other prohealth groups around the country to bring more such cases not only against convenience stores but also to focus on pharmacies," Daynard warned.

The scope of the potential for legal action was underscored by the new study, which found that 80% of 95 Massachusetts pharmacies selling tobacco products rang up sales for minors acting as decoys. …

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