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The U.S. Supreme Court refused on Monday to consider a lawsuit that alleged tobacco companies turned minors into smokers by targeting them with cigarette advertising. The California Supreme Court ruled against the smokers last August, saying a federal law on cigarette advertising and the companies' First Amendment rights to commercial speech
allowed the marketing campaigns. At issue is whether the Federal Cigarette Labeling and Advertising Act pre-empts California law. The federal law confirms the authority of the Federal Trade Commission to regulate unfair or deceptive practices in cigarette advertising.
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The Fourth Appellate District Court of Appeal in California has upheld the dismissal of a class- action lawsuit filed against R.J. Reynolds Tobacco Company, Brown & Williamson Tobacco Corporation and other major U.S. cigarette manufacturers.
The lawsuit, brought by Devin Daniels and other individuals as class representatives, was filed on behalf of all California resident minors (under the age of 18) who smoked one or more cigarettes between April 2, 1994, and Dec. 31, 1999, and who were exposed to the defendants' marketing and advertising activities in the state during that period.
Superior Court Judge Ronald Prager had granted the defendants' motion for summary judgment on Sept. 13, 2002, principally on First Amendment and preemption (by the Federal Cigarette Labeling and Advertising Act) grounds.
A. Mangini's holding was based on Cipollone, which supports Defendants' rather than Plaintiffs' position, and mandates the dismissal of the instant action as preempted under 15 U.S.C. 1334(b). . .
For purposes of this case, which seeks broad injunctive relief akin to negative prohibitions on tobacco advertisement, and this motion for summary judgment, Mangini and Cipollone do make one thing clear: that Plaintiffs' section 17200 claim under the deceptive and misleading prongs and Plaintiffs' section 17500 claim are preempted insofar as they are based on the same or a similar fraud theory examined in Cipollone (namely that of negating or rendering ineffective the federally mandated warnings on cigarette packages or, as stated in this case, that of "try[ing] to neutralize information reaching children from teachers, parents and public health officials concerning the health risks of smoking" (see Plaintiffs' Opposition Memorandum at 1:27-1:2), as the Courts in Cipollone and Mangini found these claims to be preempted. Mangini, 7 Cal.4th at 1067 (discussing Cipollone). Moreover, the reasoning behind the Court's decision in Cipollone is very applicable here, as any contrary ruling in this action would lead to the imposition of an impermissible prohibition that would constitute "the converse of a state-law requirement that warnings be included in advertising and promotions materials." . .
III. CONCLUSION
As a result, and for all the foregoing reasons, this Court must dismiss Plaintiffs' case, as Plaintiffs' UCL claims are either preempted under 15 U.S.C. sections 1334(a) or 1334(b) or based on inadmissible evidence under Civil Code section 47(b) or Civil Code section 1714.45.
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.
PLEASE READ THIS NOTICE CAREFULLY. IT RELATES TO THE PENDENCY OF A CLASS ACTION LAWSUIT, AND IF YOU ARE A CLASS MEMBER, CONTAINS IMPORTANT INFORMATION AS TO YOUR RIGHTS. . .
There is a lawsuit pending in the Superior Court of the State of California for the County of San Diego entitled Daniels v. Philip Morris, Case No. 719446 (JCCP No. 4042) (the ``Lawsuit'') filed by Plaintiffs Devin Daniels, Bryce Clements, Daimon Fullerton, Nicole Morrow and Maren Sandler (``Plaintiffs'') against Philip Morris Incorporated, Brown & Williamson Tobacco Corporation, R.J. Reynolds Tobacco Company, and Lorillard Tobacco Company (``Defendants'').
The Plaintiffs' Complaint in the Lawsuit alleges that, during the relevant period, the Defendants engaged in unlawful and deceptive marketing and advertising practices in order to seduce and induce minors in California to smoke cigarettes (the ``Practices''). The Plaintiffs allege that the Defendants' Practices constitute unlawful, unfair and fraudulent business practices in violation of the Unfair Competition Law, Business and Professions Code ss. 17200. . .
The sole purpose of this Notice is to inform you of the pendency of this Lawsuit so that you may make an informed decision as to whether you wish to remain in or opt out of this class action. . .
ALL PERSONS WHO AS CALIFORNIA RESIDENT MINORS (UNDER 18 YEARS OF AGE) SMOKED ONE OR MORE CIGARETTES IN CALIFORNIA BETWEEN APRIL 2, 1994 AND DECEMBER 31, 1999.