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Jump to full article: Supreme Court of Ohio, 2006-06-14
Intro: {¶ 29} Although it appears that the FTC has neither permitted nor forbidden characterizations like “low” tar, Flanagan, 2005 WL 2769010 at *4-5, the information about average tar and nicotine levels used in the advertisements comes directly from testing practices that are “required or specifically permitted by federal trade commission orders [and] trade regulation rules and guides.” See R.C. 1345.11(B). Because the cigarette industry is highly regulated by the federal government, PMI was obligated to follow federal mandates and standards for light cigarettes.
IV
{¶ 30} The ultimate question in this litigation is whether, notwithstanding the FTC’s imprimatur on those testing methods, PMI used the data to deliberately deceive consumers into believing that Marlboro Lights and Virginia Slims Lights are safer or healthier than other cigarettes. That issue is not before us, and our opinion should not be read to suggest that we find that the conduct at issue was deceptive or otherwise violated Ohio law. The plaintiffs may be entitled to pursue class-action relief under Civ.R. 23; however, they have failed to identify any prior rule or court decision that would entitle them to pursue CSPA relief under R.C. 1345.09(B).
{¶ 31} In conclusion, we hold that the court of appeals erred in determining that there had been a prior determination that conduct sufficiently similar to the alleged acts of PMI violated R.C. 1345.02 or 1345.03. We hold that to satisfy R.C. 1345.09(B), a plaintiff must show that the defendant’s alleged conduct is substantially similar to an act or practice that was previously declared to be deceptive. The plaintiffs do not meet that standard to qualify for classaction certification under R.C. 1345.09(B). Therefore, we reverse the judgment of the court of appeals. . . .
{¶ 44} As applied to acts or practices that allegedly violate generic but reasonably specific rules promulgated by the Attorney General pursuant to R.C. 1345.05(B)(2), the substantially-similar test imposes an unworkable comparative analysis that effectively prevents consumers from using those generic rules as a basis for the relief that R.C. 1345.09(B) authorizes. The General Assembly would not have made rule violations a basis for R.C. 1345.09(B) actions had it intended that a substantially-similar test be used. Therefore, I dissent from the majority’s decision to that extent. . . . {¶ 50} In their totality, the foregoing provisions could doom appellees’ request for class certification as well as their underlying claim for relief. However, those are determinations that the trial court should make. Like the majority, I would reverse the class certification ordered, but I would remand the cause for further proceedings on the issue of class certification in relation to the substantiation requirement on which appellees rely.
PFEIFER, J., dissenting.
{¶ 51} How much notice does a company need to know that it is not allowed to “ma[k]e a misleading statement of opinion on which the consumer [is] likely to rely to his detriment”? R.C. 1345.03(6). According to the majority opinion, R.C. 1345.09(B) requires that a company receive notice from a published court opinion or a rule of the Attorney General that a similar industry-specific practice is deceptive or unconscionable before a class-action lawsuit can be pursued. The majority opinion’s unconscionably narrow reading of R.C. 1345.09 severely limits the ability of consumers to bring a class-action lawsuit under Ohio’s Consumer Sales Practices Act (“CSPA”). . . .
{¶ 56} In my opinion, selling a product as one thing, when it is in fact another, is sufficiently similar to selling a product as one thing, when it is in fact another. I would certify the class and allow the plaintiffs to proceed to trial. To do otherwise is to encourage everyone doing business in this state to engage in deceptive practices. I dissent.
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Quotes from this article:
We hold that to satisfy R.C. 1345.09(B), a plaintiff must show that the defendant’s alleged conduct is substantially similar to an act or practice that was previously declared to be deceptive. The plaintiffs do not meet that standard .
The "substantially similar" ruling by the Ohio Supreme Court in Marrone.
In my opinion, selling a product as one thing, when it is in fact another, is sufficiently similar to selling a product as one thing, when it is in fact another. I would certify the class and allow the plaintiffs to proceed to trial. To do otherwise is to encourage everyone doing business in this state to engage in deceptive practices.
Ohio Supreme Court Judge Paul Pfeifer, in his Marrone dissent.
As I construe the majority opinion, a company that sells gasoline is on notice that it may not characterize gasoline as “low tar” or light” and sell it as such if it is not low tar or light. A company selling gasoline would be on notice that such a practice is sufficiently similar to the deceptive practice in Hi-Lo Oil Co. But companies in other businesses are apparently not on notice that making false characterizations is deceptive.
Ohio Supreme Court Judge Paul Pfeifer, in his Marrone dissent.
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