Sunday, October 12, 2008

Supreme Court Lights Up

Unlikely to let states sue over low tar cigarettes.

Can states sue tobacco companies for marketing one of the most addictive products known to man? Not if the claim hinges on deceptive claims about “light” cigarettes, the U.S. Supreme Court seemed to say last Monday.

The Court began its new term by taking up the tobacco case, in which three residents of Maine filed suit against Altria Group Inc. and its subsidiary, Philip Morris USA, under a state law barring unfair marketing practices. According to an Associated Press report, the plaintiffs argued that Philip Morris had long known that smokers of low tar cigarettes compensate by taking longer puffs and smoking more cigarettes.

After being thrown out by a federal district court, a U.S. Circuit Court of Appeals allowed the suit to proceed. Several similar cases are in progress around the country, pending a decision. If the Supreme Court finds against Philip Morris and its parent company Altria, states could initiate a new round of lawsuits as tobacco manufacturers once again face the prospect of huge class-action settlements.

Industry Week reported that Altria’s defense is that “cigarette packaging falls under the domain of the U.S. Federal Trade Commission (FTC), which failed to act despite being aware that light cigarettes were no less a health hazard than regular cigarettes.”

In other words, Altria knew that its advertising was deceptive—but so did the FTC, which approved it. Judge Samuel Alito summed up this thinking when he told an FTC attorney that by allowing cigarette ads to display tar and nicotine levels, “You have misled everyone who has bought these cigarettes for a long time.”

Chief Justice Roberts, according to the AP report, questioned why the case was focused on deception rather than the relationship between cigarettes and health: “How do you tell it’s deceptive or not unless you look at smoking and health?”

At the heart of the argument is the question of whether the 1966 federal legislation governing cigarette labeling and advertising takes precedence over more recent state legislation. Representing Altria, conservative attorney Theodore Olson found himself in the odd position of arguing that federal law should take precedence over state law.

Clifford E. Douglas of the University of Michigan’s Tobacco Research Network, told the New York Times in May that the difficulties of pushing forward with cases against light cigarettes “underscores the need to combat the light cigarette scam in the public policy arena.” Douglas said he supported legislation that would give the U.S. Food and Drug Administration (FDA) authority to regulate tobacco.

The New York Times reported that a bill under consideration in Congress “would ban the use of terms like light and low-tar in marketing such cigarettes, which contain the same tobacco as other cigarettes but have filters that allow more air to mix with the smoke, diluting it.”

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