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BERMAN: Good and the Legal Future of 'Light' Cigarettes  

JURIST Guest Columnist Micah Berman of New England School of Law says that by bringing attention to the issue of “light” and “low tar” cigarettes, the US Supreme Court's ruling in Altria v. Good may prompt state attorneys general to finally force an end to this long-running public health deception...

There are two other potential, but less promising ways in which this issue could be addressed. First, a federal government lawsuit against the tobacco industry resulted in a 2006 decision by D.C. District Court Judge Gladys Kessler ordering the tobacco companies to stop labeling their products as “light” and “low tar.” It is possible that the D.C. Circuit Court will uphold Judge Kessler’s order (it was stayed on appeal), but most observers suspect it will not. Second, there is pending legislation in Congress that would prohibit the use of the terms “light” and “low tar.” The prospects of such legislation may have increased with the recent election, but it faces strong opposition from tobacco-state senators and is unlikely to be high to Congress’s long to-do list.

By itself, the decision in Good may do little to restrain the tobacco industry’s deceptive marketing practices. But by bringing attention to the issue of “light” and “low tar” cigarettes, it may prompt the state AGs to finally force an end to this long-running deception. It is up to the states, but there may well be a litigation strategy that can put out the “lights.”

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NEMITZ: No refunds for cost of smoking  

But here's the kicker: The Maine plaintiffs make no claim whatsoever that the marketing of "light" cigarettes has actually hurt their health. Rather, they essentially say that Philip Morris ripped them off and they want a refund.

That argument won out this week before the high court, which ruled that as long as the Maine smokers' claim is economic and not medical, their case can proceed.

(The minority opinion, written by Justice Clarence Thomas, argued persuasively that plaintiffs' impaired health is not only an issue here, but is the only way to demonstrate that "light" cigarettes constitute fraud. Thus, Thomas maintained, the Maine case has everything to do with the health effects of smoking and should consequently be dismissed.)

Which brings us back to you, Joe. Or, more specifically, your wallet.

The next major step in this slow-burning drama is for the plaintiffs' lawyers to ask that the court designate the case a class action. If they succeed, any Mainer who has ever stood out there on a street corner sucking on a Marlboro Light like it was a soda straw could be in line for some form of compensation from Philip Morris.

In other words, Joe Nicfit, you could end up getting some, if not all, of your cigarette money back. . . .

But look at the bright side, Joe. You can jump aboard this juggernaut without a single doctor's visit, endurance test or high-tech scan of those tar pits you call lungs. You can even go right on smoking if you want – attorney Lanham said he's certain that one of his three clients still smokes and he's not sure about the other two.

Or, Joe Nicfit, you can finally see that there's a much better way to stick it to Big Tobacco. It requires no lawyers, no calculators and no receipts. And unlike this smoke-and-mirrors lawsuit, it has everything to do with your health.

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United States Supreme Court Rules That Tobacco Fraud Suit Filed by Mantese and Rossman, P.C. in Maine May Go Forward 

The Supreme Court ruled this morning that claims against Philip Morris for its deceptive marketing of "Lights" and "lowered tar and nicotine" cigarettes are not preempted. Justice Stevens, writing for the majority, held that claims filed in Maine seeking redress for the deceptive marketing of cigarettes bearing these labels were not preempted by federal statute or the actions of the Federal Trade Commission. The suit, filed on behalf of all Maine consumers by the law firm of Mantese and Rossman, P.C., of Troy, Michigan, will now proceed in the Maine District Court.

Gerard Mantese, counsel for the plaintiffs in the suit, stated, "We are pleased that the United States Supreme Court agreed that the tobacco companies are not immune from suit and can be held accountable, like everyone else, for consumer fraud."

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Common Theme Ties Cases of Madoff, Siemens and 'Light' Cigarette Ads 

An individual, a company and an industry were all in the news this week for reasons unrelated except for the idea of dishonesty. . . .

And finally, this week also brought a ruling that anti-tobacco activists in the United States called historic. The Supreme Court cleared the way for lawsuits against tobacco companies accused of dishonest advertising for so-called light cigarettes.

The case grew out of a lawsuit brought by three people in the state of Maine. They accused cigarette makers of hiding information that "light" or "low tar" cigarettes are just as dangerous as other cigarettes.

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Expert says industry manipulated light cigarette tests - KPCC News In Brief 

The cigarette industry is bracing itself for a wave of new lawsuits after Monday's Supreme Court ruling on so-called "light" cigarettes. The Court ruled that cigarette makers could be sued for allegedly deceptive advertising.

Dr. Stanton Glantz teaches medicine at UC San Francisco's Center for Tobacco Control. He told KPCC that the industry manipulated tests with smoking machines by punching tiny holes in the "light" cigarettes.

Dr. Stanton Glantz: "So that when the machines sucked air through the cigarette it would get diluted with room air, and so the amount of tar and nicotine that was delivered to the machines was reduced, knowing full well that when actual human smokers put the cigarettes in their mouths, they covered up these microscopic holes with their lips, and so got much higher actual doses of tar and nicotine."

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EDITORIAL: Up in smoke 

The ruling this week instead rightly tossed out the claim that the federal warning label on cigarettes somehow disqualifies anyone from applying state laws pertaining to deceptive advertising and marketing practices.

If the tobacco and other companies are taken aback, they have reason to be. The ruling denies them the automatic protective cover they seek. It establishes the fair requirement that the companies defend their practices where they do business.

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EDITORIAL: A remedy when the feds fail 

the government clearly has failed when it comes to calling Big Tobacco on its advertising lies. . . .

It remains to be seen whether the Maine suit or any others will prevail. It is clear, however, that if the federal government cannot or will not step in to protect consumers, it should at least get out of the way when people look for remedies in state court.

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EDITORIAL: Holding tobacco companies accountable  

Tobacco companies wanted smokers to believe that light cigarettes were safer. Internal industry documents described light cigarettes as "an effective marketing gimmick" that offered addicted smokers "the image of health reassurance."

After the Surgeon General's 1964 report on smoking and health -- and especially after warnings were added to cigarette packages -- tobacco company researchers devoted great amounts of time and money trying to understand light cigarettes' appeal. Their conclusion: People who bought them want "nothing less than to be conned," the documents said.

Tobacco companies obliged them. They continued advertising the unique qualities of light cigarettes, even after agreeing in 1998 to stop misrepresenting the health effects of their products. . . .

Indeed, the companies turned the restrictions to their advantage.

When people sued for injuries caused by smoking, tobacco companies argued that warning labels absolved them of responsibility. . . .

Tobacco companies have good lawyers, lots of cash and plenty of avenues for appeal if they lose. Even so, they are a step closer to finally having to answer in court.

And after millions of lives ruined and billions in medical costs, they have a lot to answer for.

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High Court OKs 'Light' Cigarette Suits  

The court's opinion could be significant for the municipal market because tobacco manufacturers signed the Master Settlement Agreement with 46 states and six territories in 1998, agreeing to pay billions of dollars to them over a 25-year period, and muni issuers have sold tobacco bonds securitized by those annual payments.

The first debt - $709 million of tobacco bonds- was sold by New York City's TSASC Inc. in 1999.

In 2003, an Illinois judge ordered Altria to pay $10.1 billion in damages in a class action suit over light cigarettes. Tobacco bond credit downgrades followed soon after the decision.

Tobacco bond issuance slowed to a halt in 2004 because of litigation against cigarette companies. The companies withheld $755 million of annual settlement payments in 2006 during disputes over prior-year payment adjustments. They withheld another $696 million during a dispute over annual payments in 2004, which they said were unfairly inflated. The bonds regained strength in the market by the first quarter of 2007, representing 7.7% of all munis sold during the quarter.

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Smokers gain high court win in labeling case  

In a case that originated in Bangor, Maine, the Supreme Court on Monday handed a surprising defeat to tobacco companies counting on it to put an end to lawsuits alleging deceptive marketing of “light” cigarettes. . . .

The case will be returned to federal court in Bangor after the first of the year, Lanham said Monday. A trial date is not expected to be set for several months. The first motion he expects to be filed will be to certify the case a class-action lawsuit.

“Companies that make products have a duty not to deceive the public,” Lanham said in a statement e-mailed to the Bangor Daily News. “Philip Morris deceived millions of consumers for more than 30 years in the deceptive advertising of Marlboro Lights cigarettes, including my three Maine clients.

“All we wanted from the outset was for our clients, and countless others like them, … to have their day in court, so a jury could say this is not the way we do business in Maine,” he continued. “Philip Morris pulled out all the legal stops — all the way to the highest court in our land — to block our clients’ access to justice. This decision allows us to pick up where we left off more than two years ago, pursuing claims for deception on their behalf under the Maine Unfair Trade Practices Act. It is a good day in Maine and across the nation for consumer justice.”

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Statement by Dr. Cheryl Healton, President and CEO, American Legacy Foundation® on the U.S. Supreme Court’s Decision in Altria Group v. Good  

Today's Supreme Court decision is an important step forward in a legal battle aimed at making sure Americans are told the truth about the devastating consequences of smoking. . . .

In a "friend of the court" brief, the American Legacy Foundation and other public health organizations educated the Court about the devastating health consequences of Philip Morris's fraudulent advertising practices. Since Philip Morris introduced Marlboro Lights in 1971, millions of people have switched to light cigarettes, including many who would have otherwise quit altogether. In fact, Marlboro Lights is now the best-selling brand in the nation. In Maine, where the lawsuit was brought, 1,900 children become new daily smokers every year. Nationally, of youth who are smokers, one in three will eventually die of a tobacco-related illness.

Today's decision follows on the heels of the Federal Trade Commission's recent rescission of its long-standing rule that enabled tobacco manufacturers to claim their "light" and "low-tar" labels were based on an FTC-approved testing method. The American Legacy Foundation urged the FTC to take the action to finally end the implied government endorsement of these misleading labels.

The truth is, light cigarettes can be just as harmful as regular cigarettes and the tobacco industry should no longer be permitted to mislead the American people into believing they are safe. Today's decision brings us one step closer to achieving this important public health goal.

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• USSC cigarette ruling has secondhand results in W.Va. 

If tobacco companies deceived smokers of "light" and "low tar" cigarettes, smokers can sue them under state consumer laws, the U. S. Supreme Court decided on Dec. 15.

Five Justices agreed that federal labeling laws do not pre-empt suits in state courts alleging that tobacco companies violated a duty not to deceive smokers.

In West Virginia, the decision allows Circuit Judge Arthur Recht of Wheeling to lift a stay he imposed on all tobacco suits in West Virginia.

Recht, who handles tobacco litigation by appointment of the Supreme Court of Appeals, imposed the stay while awaiting the decision.

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U.S. Supreme Court Allows "Light" Cigarette Cases to Proceed 

Edward L. Sweda, Jr., Senior Attorney for the Tobacco Products Liability Project at Northeastern University School of Law and attended the oral arguments, noted that, "Today’s opinion gives the green light to the victims of the tobacco industry’s 'light' cigarette scam to have their case heard before a jury of their peers. It is a victory for consumers who were deliberately deceived by an industry that came within one vote today of getting an absolute shield of immunity for decades of wrongdoing. Today’s 5-4 decision is a resounding victory for the principle that corporate wrongdoers should be held accountable for their actions."

Mark Gottlieb, Director of the Tobacco Products Liability Project added, "Had the Court reversed its ruling in Cipollone, it would have meant that when Congress passed its amended warning labeling requirement for cigarettes in 1969, it was essentially licensing the tobacco industry to commit consumer fraud. It is somewhat disconcerting that 4 justices would find that to have been the implied legislative intent of Congress 39 years ago."

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Altria Revisited: Preemption Redemption for Justice Stevens 

We checked in with WSJ Supreme Court reporter Jess Bravin to get a little more of the detail on what the decision means and were we’re headed in the preemption debate.

Hi Jess, thanks for taking the time. You mentioned in an email to us that the ruling represents a bit of vindication for Justice John Paul Stevens, who authored the majority opinion. What did you mean by that?

In 1992, in a decision called Cipillone v. Liggett Group Inc., the Court ruled that specific language in a federal act regulating cigarette labeling and requiring specific warnings did not preempt all state tort law. But the ruling wasn’t that neat; it was a plurality ruling, rather than a majority opinion, in which Justice Stevens attempted to draw a distinction between state regulations pertaining to smoking and health, and liability for deceptive advertising.

For years, lower courts have wrestled with the Cipillone ruling, partly because the distinction is tricky and partly because the ruling was issued only by a plurality. But today’s ruling endorses Cipillone with a majority, narrow though it may be. So it’s largely a win for Justice Stevens. . . .

And so where does this leave us? Do we have more clarity on preemption?

We do. Again, I think the big takeaway here is that the Court is going to undertake factually and textually specific inquiries in these cases; that there might not be a one-size-fits-all approach to preemption.

Great. Anything else to note?

Well, one more thing. Preemption is one area in which the Court will give some deference to what the executive branch says about whether an individual statute preempts state law.

Generally, the Bush Administration has favored preemption -- although not in the Altria case, which is one instance where the Court rejected preemption. But heading into an Obama Administration, these cases could start looking different largely because President-elect Obama is likely to have a more aggressive take on regulation, and therefore is likely to back off a bit on preemption.

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Supreme Court rules smokers can sue over 'light' cigarette claims 

Writing for the majority, Justice John Paul Stevens said the Maine state law forbids companies from making fraudulent statements. He said it created a broader duty for companies that extended beyond actions merely related to "smoking and health" that are regulated by federal law.

"We conclude ... that the Labeling Act does not pre-empt state-law claims like respondents' that are predicated on a duty not to deceive," Justice Stevens writes.

His decision was joined by Justices Anthony Kennedy, David Souter, Ruth Bader Ginsburg, and Stephen Breyer.

In a dissent, Justice Clarence Thomas said the court should have enforced preemption in the case, and created a clear test for the lower courts. In Justice Thomas' view, the Maine smokers' lawsuit imposed obligations tied to the "effect of smoking upon health," and thus must be preempted.

"With this suit, [the smokers] seek to require the cigarette manufacturers to provide additional warnings ... or to prohibit them from selling these products with the 'light' or 'low-tar' descriptors," Justice Thomas writes. "This is exactly the type of lawsuit that is pre-empted by the Labeling Act."

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