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Later this year, the Supreme Court will hear the case of Altria Group v. Good in order to look at state lawsuits that claim that tobacco companies engage in deceptive trade practices when they advertise cigarettes as "light" or "low tar and nicotine." The case will "decide whether tobacco companies are vulnerable to state law suits arising from the claims on their labels."
The tobacco companies argue, convincingly, that such claims are preempted by the Federal Cigarette Labeling and Advertising Act of 1965. Under that law since 1967, the U.S. Federal Trade Commission has regulated cigarette packaging and advertising, including claims about tar and nicotine levels. . . .
Although Judge Weinstein inevitably will continue to attract similar cases before him, Thursday's decision does stand as a major rejection of stretching our federal anti-mob laws into lawyer-driven class actions that target legal businesses. But the state law claims proliferating around the country are based not upon RICO but often ambiguous state consumer fraud statutes. For the fate of those lawsuits, we'll have to wait until the Supreme Court speaks.
--Mr. Copland is the director of the Center for Legal Policy at the Manhattan Institute. He owns shares in Altria.
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The fate of billions of dollars in potential lawsuit damages awards against Big Tobacco over "light cigarettes" now lies with the U.S. Supreme Court.
The USSC agreed last week to review a federal appeals court ruling that a class action fraud suit (Altria v. Good, 07-562) brought by smokers in Maine against Altria Group's Philip Morris USA (PMUSA) could proceed. Plaintiffs claim Philip Morris falsely advertised light cigarettes as containing less tar and nicotine.
More than 30 such suits against Big Tobacco are currently pending in courts around the country, reports note. A federal class action suit pending in New York that claims Big Tobacco violated anti-racketeering laws in promoting light cigarettes could contain up to 60 million smokers, AP reported.
The nation’s high court will not rule on the underlying merits of the case, Bangor attorney Samuel Lanham, who represents the plaintiffs, said Monday. Instead, the court will consider the question of pre-emption — a legal doctrine holding that federal laws take precedence over some state laws.
Lanham’s clients, three Maine residents who each smoked light cigarettes for more than 15 years, sued Philip Morris USA Inc., and its parent company, Altria Group Inc., in August 2005 under the Maine Unfair Trade Practice Act.
"What’s exciting is that this is an opportunity for Maine people to potentially have a voice at that level," Lanham said Monday. "As their attorney, I can’t lose sight of the fact that the plaintiffs chose to smoke light cigarettes because they believed light cigarettes offered lower tar and nicotine.
"It’s exciting for them to have the opportunity for their measure of justice," he continued. "It’s discouraging this is about their right to get to the merits of the case."
-- On Friday, January 18, 2008, the United States Supreme Court granted Writs of Certiorari in the case of Altria Group, Inc., et al v. Stephanie Good, Case No. 07- 562, to determine whether the nation's largest cigarette producer, Philip Morris, should be shielded from liability in connection with its representation that Marlboro Lights are lower in tar and nicotine, and in its use of the "Lights" descriptor. In their U.S. Supreme Court certiorari brief, the Plaintiffs emphasized, "For over 30 years, Philip Morris falsely reported on its cigarette packages that consumers would receive lower amounts of tar and nicotine from Marlboro Lights than from regular Marlboro cigarettes." . . .
The lead counsel for the class representatives is Gerard Mantese, an attorney at Mantese and Rossman, P.C. in Troy, Michigan. He commented, "Our position is supported by the U.S. Supreme Court ruling in Cipollone v. Liggitt Group, where the Court held that when tobacco companies affirmatively lie, they can be sued for fraud in state court."
Mr. Mantese added, "Nothing in the federal cigarette labeling act takes away the historic power of the states to hold tobacco companies accountable for fraud. This state power is rooted in the Constitution itself and the power of the states to protect its citizens."
On Friday, August 31, 2007, the First Circuit Court of Appeals reinstated a class action lawsuit brought by Maine residents against Philip Morris by unanimously rejecting Philip Morris' argument that the claims were preempted by federal law. The case challenges the cigarette company's representations that certain brands of its cigarettes are "light" or have "lowered tar and nicotine," alleging that Philip Morris, USA, Inc., and its parent company, Altria Group, Inc., violated Maine Unfair Trade Practices laws by engaging in unfair and deceptive acts or practices. The plaintiffs allege that the so-called "light" cigarettes are deceptively designed and marketed to the public, and that a smoker consumes the same quantities of tar and nicotine from light cigarettes as from full-flavored, or "regular," ones.
In what could turn out to be a shield from massive lawsuits over the marketing techniques used for 'light' cigarettes, the US Supreme Court has accepted to hear arguments from cigarette maker Altria Philip Morris, USA.
Altria Philip Morris, USA, is the biggest cigarette manufacturer in the United States. A lower court had decided that the company should face claims made by a smoker from Maine that it depicted 'light' cigarettes as safer than non-light cigarettes. Philip Morris says that according to federal law the suit cannot occur. Justices from the Supreme Court say they will review the lower court decision. . . .
Personal Observation by the Editor of Medical News Today, Christian Nordqvist
I have not smoked a cigarette since midnight, 31st December, 2007. Nineteen days so far cigarette-free!! I run on a treadmill (running machine) four times a week for 30 minutes, . . .
I have been running for over two years, so the improved pulse could not have been due to a recent fitness drive - the rapid improvement in my pulse is due to my not smoking. This will be my motivator, to check my pulse every week. I have tried to quit many times - I hope I will never smoke again.
The Supreme Court’s already substantial investment in defining the boundary between federal regulation and state tort law grew even bigger on Friday. The justices added two new cases to their docket on drug and cigarette labeling requirements.
In each case, as in four others the court has already agreed to decide in the current term, the question is one of federal pre-emption. The cases offer variations of a common question: if a product meets federal standards, can the manufacturer be liable for damages under state law for injuries suffered by consumers? . . .
The proliferation of pre-emption cases on the court’s docket in part reflects the considerable turmoil in the lower courts over the complex issues involved. It also reflects a concerted effort by the business community to push for federal pre-emption as a shield against state courts.
The United States Chamber of Commerce filed a vigorously worded brief in the cigarette case that the court accepted Friday, emphasizing for the justices the “jurisprudential gulf” that separates various lower court rulings on whether federally approved or required product labels should be given pre-emptive effect against state tort liability.
Referring to the lower court’s ruling in the cigarette case, the chamber’s brief said that “if allowed to stand, the First Circuit’s approach would Balkanize cigarette labeling, advertising, and promotion into a state-by-state endeavor,” adding that “it is difficult to imagine a more powerful blow to the interest of nationwide uniformity and consistency.”
The plaintiffs’ brief to the court emphasized the factual allegations of their case: that Philip Morris knew from its own research that based on actual smoking habits, smokers received the same tar and nicotine from “light” cigarettes as from regular brands, but that the company kept this from the F.T.C.
he Supreme Court agreed Friday to a cigarette maker's request to decide whether tobacco companies can be sued under state law for allegedly deceptive advertising of "light" cigarettes.
The tobacco industry is trying to head off a wave of state-based challenges regarding the light cigarettes, even as it is appealing a federal judge's order to stop marketing cigarettes as "low tar," "light," "ultra light" or "mild" because they mislead consumers.
The issue before the justices is whether state laws against unfair marketing practices may be used in suits against the tobacco companies or whether federal law bars such lawsuits. The Federal Cigarette Labeling and Advertising Act says states can't impose any requirements on the advertising or promotion of cigarettes.
The need to clarify the proper way to analyze the preemptive effect of these federal programs increases with each passing day. As the Nation's economy grows more integrated, the impetus for Congress and agencies to establish national standards that facilitate interstate commerceand ensure that consumers can understand packaging anywhere in the United States-will only increase. At the same time, plaintiffs (and state legislatures) are increasingly attuned to labeling and advertising claims as well. Indeed, as explained above, the number of lawsuits predicated on state deception statutes and common-law failure-to-warn theories is growing exponentially. See p.6, supra.
Given the direct, acknowledged, and undeniable circuit conflict, this case would warrant further review even if its impact were limited to tobacco cases. But its impact is not so limited. The confusion that has developed in the 15 years since Cipo Wine was decided infects many areas of the law, and the circuit conflict in this particular context merely reflects that greater uncertainty. In light of the number of federal labeling regimes that exist today, and the growing number of state-law challenges
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predicated on advertising and disclosure, the importance of this issue will continue to grow, as will the uncertainty absent prompt review by this Court. Accordingly, the petition for a writ of certiorari should be granted.
SUMMARY OF THE ARGUMENT
As the petition explains, the traditional reasons for granting certiorari are present here: The decision below implicates a clear split among the federal courts of appeals, as well as several lower federal and state courts, concerning an important and recurring question of federal law. Amicus wishes to highlight additional reasons why it is important for this Court to grant certiorari in this case
This case poses a question that is critically important in a second wave of tobacco litigation that is currently threatening the tobacco industry: whether state-law challenges to statements regarding tar and nicotine yields in cigarette packaging and advertising are preempted by federal law. The court below misapplied this Court's decision in zpoione v. Liggett Group, Inc., 505 U.s. 504 (1992), and held that respondents' allegations escaped the preemptive reach of the Labeling Act because the substance of the claims at issue "is that Philip Morris has falsely represented certain of its brands as 'light' or having 'lower tar and nicotine."
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Pet. App. 16a. Having so characterized respondents' claims, the First Circuit concluded that they were not preempted, because respondents had, according to the First Circuit, pleaded their claims so that they were not "based on smoking and health" but instead on a state law "duty not to deceive." Id. at 16a-17a. As the petition explains, the First Circuit's holding creates a direct conflict between the courts of appeals. See Pet. 10-14. Indeed, the First Circuit explicitly "disagree[d]" with Brown v. Brown & Williamson Tobacco Corp., 479 F.3d 383 (5th Cir. 2007), which held that the Labeling Act preempts substantively identical state-law fraud claims challenging the same statements on cigarette packaging and advertising, Pet. App. 35a; see also Pet. 10-14, and thus further exacerbated confusion in the lower courts on this important and recurring issue of federal law, see Pet. 18-20.
At a practical level, the First Circuit's holding effectively repeals the Labeling Act's preemption provision as applied to a new wave of "lights fraud" cases that plaintiffs have brought against the tobacco industry in courts throughout the country. In the First Circuit, plaintiffs challenging a tobacco company's advertising practices can now evade the Labeling Act's preemption provision by simply asserting that their fraud claims are based on the "duty not to deceive." Yet, under this Court's interpretation of the Labeling Act in Cipollone, such claims should be preempted, no matter how artfully they are pleaded, because they amount to a claim that the cigarette's effect on the plaintiffs' health was different from what the packaging allegedly suggested to the plaintiffs. Imposing liability based
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on this theory would necessarily create state-law requirements or prohibitions that transgress Congress' comprehensive federal scheme for the national advertising and promotion of cigarettes.
A lawsuit alleging such a theory is grounded on what a company says about the cigarette on packaging and labeling-and what it says about the cigarette is inextricably intertwined with what the federal government requires or authorizes it to say in advertising and promotion. A requirement that a tobacco company take certain actions so as not to be in violation of state law is precisely the type of requirement barred by the Labeling Act because compliance with it would mean modifying a tobacco company's advertising, promotion, or labeling in some way and would create a patchwork of divergent statelaw requirements for tobacco advertising and promotion. See 15 U.S.C. § 1333, 1334.
The First Circuit's holding has upset the uniformity that Congress legislated with the Labeling Act. With tobacco companies thus deprived of a preemption defense in the First Circuit for statements made in accordance with federal law, amicus curiae R. J. Reynolds and other tobacco companies will now be faced with defending claims in that circuit that should not be viable. Plaintiffs' lawyers throughout the country will also now be emboldened to file similarly styled complaints in the First Circuit and elsewhere. Such a result flies in the face of Congress' effort to create uniformity in this area and undermines the comprehensive regulatory regime that Congress has established to supervise tobacco advertising and promotion.
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Without guidance from this Court, lower courts in the First Circuit and elsewhere will continue to reach inconsistent results in cases that regularly pose the specter of billions of dollars in damages awards in each case. The financial stakes that turn on the question presented by this petition are thus enormous. For this reason and because the decision below frustrates the uniform application of federal law that Congress has sought in this area, this Court should grant the petition to define the scope of the preemption provision under the Labeling Act and Cipollone.
Docket: 07-562 Case name: Altria Group v. Good
* Opinion below (1st Circuit)
* Petition for certiorari
* Brief in opposition
* Petitioner’s reply
* Amicus brief of the Chamber of Commerce (in support of the petitioner)
* Amicus brief of R.J. Reynolds Tobacco Company (in support of the petitioner)
The Supreme Court on Friday agreed to decide whether smokers may file court challenges, based on state law, to cigarette companies' advertising claims that some brands are "light" or "low in tar and nicotine."�The case is Philip Morris v. Good, et al. (07-562).
Altria Group Inc.'s Philip Morris USA unit Friday won the chance to overturn a federal ruling allowing a Maine light cigarettes marketing lawsuit to proceed.
The class-action lawsuit, filed under a Maine trade law, is like several other cases filed around the country alleging Philip Morris was deceptive in marketing Marlboro Lights and other cigarette brands as "light" with lower tar and nicotine content than other cigarette products.
The lawsuit, filed on behalf of smokers, seeks to recover financial damages for fraudulent marketing. Besides the various pending state law class-actions, the advertising of light cigarettes is an issue addressed in a federal lawsuit against the tobacco industry that is on appeal in a Washington-based appeals court.
Philip Morris, the largest U.S. tobacco maker, tried to stop the lawsuit, arguing the Federal Trade Commission's regulation of cigarette advertising bars claims under a state law.
Altria Group Inc.'s (MO) Philip Morris USA unit Friday won the chance to overturn a federal ruling allowing a Maine light cigarettes marketing lawsuit to proceed.
-- On Friday, August 31, 2007, the First Circuit Court of Appeals reinstated a class action lawsuit brought by Maine residents against Philip Morris by unanimously rejecting Philip Morris' argument that the claims were preempted by federal law. The case challenges the cigarette company's representations that certain brands of its cigarettes are "light" or have "lowered tar and nicotine," alleging that Philip Morris, USA, Inc., and its parent company, Altria Group, Inc., violated Maine Unfair Trade Practices laws by engaging in unfair and deceptive acts or practices. The plaintiffs allege that the so-called "light" cigarettes are deceptively designed and marketed to the public, and that a smoker consumes the same quantities of tar and nicotine from light cigarettes as from full-flavored, or "regular," ones. In this case, and in other cases around the country, Philip Morris challenged the claims on the ground that the Federal Cigarette Labeling and Advertising Act and the FTC's actions preempted the state law claims brought under the state consumer protection statutes . . .
In his 68 page opinion, Judge Howard also noted that despite Philip Morris' contention that was a coherent federal policy that barred state law, low-tar claims, this was expressly contradicted by a Supreme Court filing by the United States Solicitor General in 2006, which stated that the FTC "has never promulgated definitions of terms such as 'light' and 'low tar' and that its previous statements purporting to define them 'did not reflect an official regulatory position.'" Gerard Mantese, lead attorney for the plaintiffs, commented, "the Court of Appeals categorically rejected Philip Morris' assertion that cigarette companies have an immunity for fraud,"