Court Allows Suit Against 'Light' Cigarette Makers

[Guest guest]

If smokers can sue for deceptive marketing - why can't someone sue

pharma for their deceptive ads (especially for the flu and Gardisil)??

Court Allows Suit Against 'Light' Cigarette Makers

Companies Face Huge Liabilities Over Marketing

By

Washington Post Staff Writer

Tuesday, December 16, 2008; A02

The Supreme Court said yesterday that consumers may sue over what

they allege to be deceptive marketing of " light " cigarettes, a

decision that opens tobacco companies to what could be billions of

dollars in liability in court cases nationwide.

The justices voted 5-4 in saying that a group of Maine smokers may

proceed with their suit against Philip USA, now owned by

Altria. The marketing of what the tobacco companies had once called a

more " healthy " cigarette is perhaps the biggest legal liability

facing the industry, experts say.

The court said federal laws regarding the labeling of cigarettes for

health dangers do not stand in the way of suits under state laws that

regulate fraudulent marketing practices.

Such suits, wrote Justice s, are " predicated on the

duty not to deceive " and are separate from federal oversight of

cigarette testing or the warnings printed on cigarette packs.

Tobacco companies and business groups had hoped the court would rule

that the federal laws " preempt " state consumer laws. Anti-smoking

groups said the ruling gave a " green light " to court action to hold

cigarette-makers liable for the harm they cause.

" It is a historic day for tobacco litigation, " said L. Sweda

Jr., senior attorney for the Tobacco Products Liability Project at

Northeastern University School of Law. He added that the industry had

wanted an " absolute shield of immunity for decades of wrongdoing. "

In addition to the Maine case, he said there were about 40 similar

suits filed in more than 20 states against tobacco companies that

sell the " light " and " low-tar " cigarettes.

An Altria lawyer said the company was disappointed by the ruling but

pointed to s's comments that smokers have only won the right to

try to prove that the company was deceptive. The Maine case was

dismissed by a judge before the smokers had even presented their

allegations to a jury.

" We continue to view these cases as manageable, and the company will

assert many of the strong defenses used successfully in the past to

defend against this very type of case, " said Murray Garnick, Altria

Client Services senior vice president and associate general counsel.

The decision in the case, Altria Group v. Good, is the latest in a

growing national debate over " preemption, " a doctrine under which

liability lawsuits filed in state courts are being challenged as

being the province of federal law.

Courts are filled with such cases, and the Supreme Court recently

decided several in favor of industries. Robin Conrad, who represents

the U.S. Chamber of Commerce, said yesterday's decision came " just

when we thought the court was finally introducing some clarity " to

the issue. " We're all baffled, " she said.

The justices have heard arguments this term in another preemption

case, involving the pharmaceutical industry, which may provide more

guidance about when federal law trumps state consumer protection

statutes.

In the cigarette case, the court split along familiar ideological

grounds, with Justice M. Kennedy, often the deciding vote in

such cases, siding with his more liberal colleagues: s and

Justices H. Souter, Ruth Bader Ginsburg and G. Breyer.

Justice Clarence wrote a dissent that was joined by Chief

Justice G. Jr. and Justices Antonin Scalia and A.

Alito Jr.

The companies that make " light " and " low-tar " cigarettes say they

rely on a test, approved by the Federal Trade Commission, that is

conducted by a smoking machine and shows that the " light " and " low-

tar " cigarettes contain smaller amounts of tar and nicotine than

regular cigarettes.

But the smokers in this case, who used Philip 's Marlboro

Lights and Cambridge Lights for more than 15 years, alleged

that " human smokers unconsciously engage in compensatory behaviors "

that negate any benefit. Those who smoke such cigarettes, amounting

to about 80 percent of smokers, take deeper drags, hold the smoke

longer in their lungs or smoke more of the cigarettes to compensate

for the lower nicotine levels.

They have cited internal company documents to accuse Philip of

knowing just that but still marketing low-tar and low-nicotine

cigarettes as less harmful.

Philip contended that the Maine suit was barred by federal

laws enacted in the 1960s that set a standard for the warning of

health risks from smoking and that barred states from enacting any

additional regulation " based on smoking and health. "

s relied on the court's 1992 ruling in Cipollone v. Liggett

Group Inc. for yesterday's result. That decision, which produced

three opinions but none in which a majority agreed, held that the

federal label law did not ban all suits filed under state laws.

And s said the Maine law concerned deceptive practices,

not " smoking and health. "

dissented, saying that Cipollone created " an unworkable test "

and that the Maine case " is premised on the effect of smoking on

health. " That is just what federal law forbids states from

regulating, he said.

also noted the court's more recent decisions on the issue of

preemption and said, " This court has altered its doctrinal approach. "

One difference in this case is that the FTC and the federal

government supported the smokers' suit. Commissioner Jon Leibowitz

issued a statement calling the decision " vindication for the Federal

Trade Commission, which never meant to preempt state laws against

deceptive advertising. "

Staff writer Jerry Markon contributed to this report.