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Thus, if a person has a higher tendency to engage in heavy episodic drinking than the cohort and casecontrol participants, they would experience more health loss or harm than reported in the risk curves

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The Court of Appeals for the First Circuit reversed and held that the plaintiffs' claim were not: (1) expressly preempted by the FCLAA, (2) implicitly preempted, either by the FCLAA or by the FTC's oversight of tar and nicotine claims in cigarette advertising, or (3) barred by the act's exemption for "transactions or actions otherwise permitted." 55 The court of appeals, like the district court, discussed the FTC's history as related to tobacco advertising and the predicate duty test