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This is a “tobacco†case, but not of the personal injury variety. Highly summarized, the legal claims in this case are that the defendants, Philip Morris USA, Inc. (“Philip Morrisâ€), and its corporate parent, Altria Group, Inc. (“Altriaâ€), violated the Kansas Consumer Protection Act (“KCPAâ€), K.S.A. § 50-623 et seq., and that defendants were unjustly enriched, by marketing “Marlboro Lights†and “Cambridge Lights†brands of cigarettes as being lower in tar and nicotine than regular cigarettes. The factual allegation upon which these claims is predicated is that although defendants’ light cigarettes yield lower tar and nicotine quantities when tested by a machine approved by the Federal Trade Commission (“FTCâ€), they do not in fact deliver lower quantities of tar and nicotine to smokers. Defendants allegedly knew their light cigarettes would not actually deliver lower amounts of these chemicals to smokers, but marketed them as such.
. . .Philip Morris argues that Ms. Brown cannot demonstrate its statements regarding its light cigarettes caused her to suffer a loss, as required by K.S.A. § 50-634(d), because she has not shown she relied on those statements in deciding to smoke Marlboro Lights. Ms. Brown argues that a showing of reliance is not required, but even if it is, she claims she did in fact rely on Philip Morris’ statements when she started smoking Marlboro Lights. As set forth in connection with the Rule 23(b)(3) analysis above, the court finds that K.S.A. § 50-634(d) requires a showing that Ms. Brown relied on Philip Morris’ representations regarding their light cigarettes. This inquiry is a factual one, specific to the individual plaintiff in question. Given the current state of the record, the court is unprepared to say, as a matter of law, Ms. Brown did not rely on Philip Morris’ statements when she started smoking. Although neither side complied with D. Kan. Rule 56.1, the court believes that a rational trier of fact could find that Ms. Brown relied on Philip Morris’ representations in purchasing light cigarettes. Thus, a genuine issue of material fact exists as to causation, and therefore Philip Morris’ motion for summary judgment is denied.
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A federal judge has dealt a crippling blow to a tobacco case that sought damages not for personal injuries but for misleading advertising under the Kansas Consumer Protection Act.
In denying plaintiff Tammy Brown's motion to certify the case against Philip Morris USA as a class action, U.S. Magistrate Judge James P. O'Hara ruled that the act requires proof that each would-be class member relied on the company's alleged misrepresentations.
Brown had argued that such an interpretation of the statute would effectively gut its class-action provision. O'Hara said that, while he was sensitive to that concern, the language of the statute "requires individual showings of reliance, even if the result is very few class certifications in misrepresentation cases."
"If the statute is in need of revision (and it goes without saying that nobody has suggested that K.S.A. Section 50-634 presents a model of good drafting)," he wrote, "the task constitutionally must be performed by Kansas legislators, not a federal judge." . . .
Given its own amply documented history of dishonesty about the dangers of cigarette smoking, it was more than a little ironic that Philip Morris argued that Brown's convictions for dishonest acts called into question her ability to act as an honest class representative.
We thus conclude that an express warranty claim arising solely out of the use of descriptors based on the FTC method is preempted. In Cipollone, where the plaintiff was permitted to proceed with his express warranty claim, the plaintiff had produced advertisements explicitly stating that there was “proof†that that brand of cigarettes “never ... did you any harm.†Cipollone v. Liggett Group, Inc., 893 F.2d 541, 549 (3d Cir. 1990). The defendant in that case was held liable for the additional representations that it made with respect to the safety of its products, not for its use of the FTC-approved descriptors. We therefore hold that the district court erred in finding that Plaintiffs’ express warranty claim is not pre-empted by the Labeling Act.
2. The district court also held that Plaintiffs’ claims based on alleged breach of implied warranty are not pre-empted. This holding finds no support in the Cipollone opinion. As Plaintiffs failed to explain the basis of this claim in their pleadings or to argue in support of this claim on appeal, and as the district court failed to provide any discussion of the pre-emption analysis with respect to the claim in its order, we will not consider it for the first time here. We therefore hold that this claim is dismissed with prejudice.
IV.
For the foregoing reasons, we reverse the judgment of the district court and remand with directions to enter a judgment dismissing all claims with prejudice.
Phillip Morris used Proposition 64 to have a class action lawsuit charging the tobacco giant with marketing tobacco to minors and deceiving consumers about the health effects of "light" cigarettes decertified this week. Phillip Morris contributed $200,000 to pass Proposition 64, which big industry proponents claimed would not apply retroactively or to pending suits before the November election.
Proposition 64 proponents also told the public that the initiative was aimed at stopping baseless suits against small businesses, not legitimate consumer protection cases against big business. It is, however, the initiative's large corporate donors that are aggressively seeking to dismiss unfair business competition lawsuits, like the Phillip Morris case, filed against them prior to the election, according to consumer advocates.
"Phillip Morris gave $200,000 to Proposition 64 to avoid accountability for marketing tobacco to kids and lying about the health dangers of cigarettes," said Carmen Balber, consumer advocate with the Foundation for Taxpayer and Consumer Rights (FTCR). "These attacks by Phillip Morris and more than 100 other big corporations on pending unfair business competition suits are the tip of the iceberg revealing that Prop. 64 is the greatest threat to consumer, public health and environmental protections in decades."
San Diego Superior Court Judge Ronald S. Prager has decertified the Brown class action after finding that the November 2004 voter referendum known as Proposition 64 applied to the case. Proposition 64 modified California's Unfair Competition and False Advertising Law by mandating that the only private plaintiffs with standing to prosecute such statutory claims are those who have suffered injury in fact and lost money or property as a result of the defendant's alleged conduct.
"We believe the judge’s ruling was appropriate in light of the law, and should dispose of the case," said William S. Ohlemeyer, Philip Morris USA vice president and associate general counsel.
Altria Group said late Wednesday that a San Diego judge has decertified the class action known as the Brown case.
The case was based on claims that advertising and promotion by the nation's major cigarette manufacturers targeted minors and deceived smokers into purchasing so-called "light" cigarettes.
The court dismissed those claims in November 2004, the tobacco company said in a statement. . . .
Altria (MO) said the decertification came after the judge found that the November 2004 voter referendum known as Proposition 64, which mandated that "the only private plaintiffs with standing to prosecute such statutory claims are those who have suffered injury in fact and lost money or property as a result of the defendant's alleged conduct" applied to the case.
Trial of the case, known as Daniels vs. Philip Morris, had been expected this fall. . .
Although not binding on courts in other states, the decision was a setback for lawyers and health groups that have sought to hold cigarette makers legally responsible for underage smoking, which they say the industry has encouraged with ads portraying smoking as glamorous and cool.
Industry lawyers are certain to cite Prager's reasoning in other big cases in Illinois, Massachusetts and the District of Columbia involving cigarette marketing practices. . .
Prager's decision came in a pair of preliminary rulings Thursday. He set a Sept. 30 hearing for plaintiffs to seek reconsideration. John F. "Mickey" McGuire, a lawyer for the plaintiffs, said if their argument fails, they expect to appeal. . .
Moreover, Prager said, "apart from asserting the defendants' advertising is misleading and deceptive ... because it associates smoking with 'glamorous,' 'cool,' 'strong,' 'macho,' 'tough' and 'sophisticated' images ... that have 'sex appeal'... plaintiffs point to no other allegedly misleading or deceptive information contained in the ads." . .
Also pending before Prager is another tobacco class action called the Brown case, which seeks to hold the industry liable for its marketing practices. Some observers said that based on Prager's reasoning in Daniels, the Brown case seems in jeopardy too.
A federal appeals court threw out claims against Philip Morris Cos. Inc. and other tobacco companies that they intentionally marketed less healthy menthol cigarettes to African-Americans.
The decision by the 3rd U.S. Circuit Court of Appeals affirmed a lower court's ruling that a group of black smokers didn't show there was a disparity between the products sold to African-American smokers and those sold to white smokers, according to the Associated Press.
The plaintiffs claimed civil rights violations because the advertisements for less healthy menthols were targeted toward black smokers. The suit had sought class-action status to represent all living black Americans who have purchased or consumed menthol cigarettes since 1954.
The lower court "correctly held that black smokers' claims of racially targeted advertising and marketing of menthol products were inadequate to state a cause of action," U.S. Circuit Judge Jane Roth wrote for the Philadelphia-based appeals court.
Stephen A. Sheller, a Philadelphia lawyer who filed the suit, was unsure yesterday if the ruling will be appealed but criticized the judge's legal rationale. "It sends a message that money is more important than life or death," Sheller asserted. . . Philadelphia lawyer Jeffrey G. Weil, who argued the case for the tobacco companies, said the companies sell "a lawful product. . .on the same terms to blacks and whites alike."
A national anti-tobacco advocate said Wednesday a federal class-action lawsuit alleging tobacco companies violated African-Americans' civil rights by marketing more-dangerous menthol cigarettes in their communities is "more about acknowledgment than money."
"The industry has not acknowledged that menthol, by itself, is a danger," said the Rev. Jesse W. Brown Jr., acting executive director of the National Association of African Americans for Positive Imagery.
Brown, the lead plaintiff in the lawsuit, is speaking today to state anti-tobacco groups at the University of Wisconsin-Madison.
Michael York, a Washington, D.C., outside counsel for Philip Morris, told The Frankenfeld Report the suit was based on an "exotic theory" without legal merit. He called the target-marketing claim "preposterous" and said, "I can't think of any segment of our society that are not targeted, except people who are underage." . . The suit is proposed as a class action and at this writing was awaiting court certification as such. In the meantime, The Onyx Group, a marketing communications company in Bala Cynwyd, Pa., is recruiting potential plaintiffs by asking African-Americans who have smoked menthol cigarettes since 1954 to call a toll-free phone number. Brown is vice president of The Onyx Group as well as founder of the National Association of African Americans for Positive Imagery and the Uptown Coalition for Tobacco Control and Public Health.
With respect to Big Tobacco's $206 billion payment, The Onyx Group is urging African Americans to ensure that a fair share of the money goes to help blacks break the habit.
I can't think of any segment of our society that are not targeted, except people who are underage.Michael York, a Washington, D.C., outside counsel for Philip Morris. . . Quoted in <i>Smoking gun: Blacks say menthol cigarette ads targeted them</i>
The menthol lawsuit is based on the Civil Rights Acts of 1866 and 1870 and the 13th and 14th Amendments to the Constitution. It is believed to be the first lawsuit filed against the tobacco industry on behalf of African Americans. Oral arguments on the tobacco industry's motion to dismiss the lawsuit are scheduled for April 7, 1999 in the Federal District Court in Philadelphia. . . We are asking organizations of youth and adults in Black communities throughout the country to begin active health campaigns to convince smokers of menthol cigarettes in our communities to Quit Today! and to encourage more attention to the dangers of menthol by government agencies and health groups.